The Issue The issue in this case is whether the Department of Environmental Protection (DEP) should grant the application filed by the DeVries for a coastal construction line (CCCL) permit to build a house (with dolomite drive, septic tank, and drain field) and a dune walkover seaward of the CCCL on their property on the St. Joe Peninsula in Gulf County (Permit GU- 501).
Findings Of Fact The Neighbors Mark and Rita DeVries own 0.163 acre in Block 6 of Peninsular Estates, which is on the St. Joe Peninsula in Gulf County. The St. Joe Peninsula is oriented approximately north and south, with the water of the Gulf to the west. DEP Monument R-83 is on the DeVries' property. Linda McAlpin also owns property in Block 6 of Peninsular Estates seaward of the DeVries' property. She and her husband, Dr. Glenn Mark McAlpin, bought the property in 2001. The dunes on the property had been cleared prior to 1973 for construction of a beach house and driveway. The prior owner's beach house was then damaged by major storms. In 2001 and 2002, the McAlpins got a CCCL permit to build a pile- supported 5,000 square foot, three-story house over a concrete slab used as a parking area, with a dolomite driveway, on her property. There is no private property to the west (i.e., seaward) of her property. In 2006, Dr. McAlpin quitclaimed his legal interest to his wife to insulate it from his potential professional liabilities. Except for the legal consequences of the quitclaim deed, the McAlpins continue to treat the property as a marital asset. Dr. McAlpin continues to handle practically all matters relating to the maintenance of the house, including repairs necessitated by major storms and beach erosion. The Beach and Dune System Besides the McAlpins, there are beach houses to the east (landward) and to the north of the DeVries' property. The house to the north was moved landward from its original location after it suffered major storm damage in 2005. It used to be north of the McAlpin house. There is a house to the south of the McAlpin house. Except for the house that was moved, there is a continuous line of construction seaward of the CCCL to the north and south along the line between the McAlpin house and the house to the south. The McAlpin house also suffered damage from the storms of 2004 and 2005. Sand sediment under the seaward side of the house was scoured out and undermined, and part of the frangible concrete slab and some of the plumbing under that part of the house dropped to the new, lower sand surface. The McAlpins had sand brought in to place under the house and began to build a seawall around the pilings and new sand until the seawall project was halted for failure to obtain a permit. In 2008 and 2009, a beach restoration project was installed on the peninsula, which added sand to the beach and formed a dune immediately seaward of the McAlpin house. There is a dispute whether the DeVries propose to build on a frontal dune. The McAlpins contend that the seaward toe of the frontal dune is seaward of their house, that its crest is on the DeVries' property just east of their common boundary, and that the frontal dune extends landward approximately to the DeVries' common boundary with the property to the east. Michael Dombrowski, P.E., gave expert coastal engineering testimony in support of McAlpins' contention. The DeVries and DEP contend that the beach restoration project re-created the frontal dune that was seaward of the McAlpins' house before the major storms of 2004 and 2005 and that the McAlpins' house sits on a separate primary dune landward of the primary dune. Michael Walther, P.E., and Tony McNeal, P.E., gave expert coastal engineering testimony in support of the contention of the DeVries and DEP. The beach restoration project created a dune, i.e., a mound or bluff of sand, that is landward of the beach, parallel to the shoreline, and continuous in the vicinity. The dune has been planted with native vegetation that is thriving and spreading. Since its installation, the dune has been stable, and sand has been accreting on the dune. The dune is of sufficient vegetation, height, continuity, and configuration to offer protective value up to a major, 40- to 60-year return storm. As such, it is a frontal dune. See § 161.053(5)(a), Fla. Stat. There is a trough between the dune created by the restoration project and dune on which the McAlpins' house sits. (The trough is the landward toe of the frontal dune and the seaward toe of the dune under the McAlpin house). The latter dune system crests at approximately 18 feet North American Vertical Datum of 1988 (NAVD) on the DeVries' property a little landward of the common boundary between the two properties. It is a significant dune in that it has sufficient height and configuration and vegetation (especially on the DeVries' property, which is heavily vegetated) to provide protective value. See Fla. Admin. Code R. 62B-33.002(17)(a). The alterations made to the McAlpin property by the prior owner adversely affected the alongshore continuity of the dune system, but it still is a primary dune in that it affords a measurable level of protection to upland property and structures from the predictable erosion and storm surge levels associated with coastal storm events. See Fla. Admin. Code R. 62B- 33.002(17)(b). The Proposed Beach House The DeVries' application is to build a pile-supported 3,000 square foot, two-story house over a concrete slab used as a parking area, with dolomite drive and a dune walkover. The house would be up to approximately 110 feet seaward of the CCCL, landward of the adjacent McAlpin house, and landward of the 30- year erosion line (DEP's projection of the seasonal high-water line 30 years in the future). It is undisputed that the proposed construction will conform to the requirements of the Florida Building Code. The DeVries' proposed house would be on 18 one-foot square piles, with two eight-inch square piles supporting the wooden deck. This construction method, which is standard, minimizes impacts from erosion and scour. The DeVries propose a septic tank and drain field between the house and the common boundary with their neighbor to the east (i.e., the landward side of the property). This optimal location for the septic tank and drain field is made possible by the orientation and dimensions of the proposed house (a relatively narrow rectangle with the longer sides in the north-south direction). Petitioners contend that impacts should be minimized by requiring construction of a narrower, taller structure. The footprint already is smaller than the footprint of the McAlpins' house. Requiring a further reduction would create problems in the design of the interior space of the house. It was proven that the dimensions of the house proposed by the DeVries is reasonable and sufficiently minimizes impacts. There will be no net excavation of in situ sand for the construction authorized in proposed Permit GU-501. Sand excavated for the septic tank and drain field, along with additional sand brought to the construction site, will be used to fill a bowl-like feature in the middle of the DeVries' property and level the ground for the concrete slab under the DeVries' proposed house. There will be a net addition of sand to the site. The concrete slab beneath the DeVries' proposed house is designed to be partially cut so as to break into smaller pieces in a catastrophic storm event and not cause collapse, displacement, or other structural damage to the elevated portion of the building or supporting foundation system. Cf. Fla. Admin. Code R. 62B-33.002(9). The concrete slab proposed beneath the house was reduced in size to eliminate a roughly seven-foot by 16-foot rectangle in the northwest corner and not to disturb a higher dune feature that exists in that location. Petitioners contend that the DeVries' concrete slab could be further reduced in size to minimize impacts to the primary dune. However, it was proven that the size of the concrete slab is reasonable and sufficiently minimizes impacts. The driveway authorized by proposed Permit GU-501 will narrow from approximately 30 feet wide at the house to approximately 12 feet at the County right-of-way, which reduces impacts (and is narrower than the McAlpins' driveway). Petitioners contend that the driveway should be narrower to minimize impacts. It was proven that the width of the proposed driveway is reasonable and sufficiently minimizes impacts. Frangible curbing is proposed along both sides of the driveway. This will prevent or discourage driving elsewhere on the lot. The Proposed Dune Walkover The DeVries' proposed dune walkover would be connected by stairs to a wooden deck off the northern end of the first story of the house. From the stairs, the dune walkover proceeds for a short distance in a northerly direction, then proceeds in a westerly direction towards the beach within a 10-foot wide access easement. It would be four feet wide and at least two feet above the ground surface and would pass within ten to 20 feet of the north side of the McAlpins' house. It would be supported by four-inch by four-inch wooden piles. Petitioners contend that the DeVries' proposed dune walkover should be denied because there is a public beach access off White Sands Drive approximately 500 feet to the south. The purpose of the dune walkover would be to avoid the impacts that would occur if people staying at the DeVries' beach house use the beach access easement instead of the public access. The existence of the public access is not a ground to deny private beach access via a dune walkover that meets CCCL permitting criteria. Petitioners also contend that the proposed dune walkover should be denied because a ground-level foot path was not considered. Since the purpose of the dune walkover is to avoid the impacts of an on-grade footpath, that option was considered and rejected. Petitioners contend that the proposed dune walkover should be reduced to three feet. But it was proven that the proposed four-foot width is standard and reasonable; that the construction method already minimizes impacts; and that the impacts from a three-foot wide walkover would not be much less than the proposed walkover. Petitioners also contend that the DeVries' dune walkover should use rounded piles, not square ones as proposed. They base this contention on DEP's Beach and Dune Walkover Guidelines (Dune Walkover Guidelines), which state that rounded piles are preferred. Rounded piles are not mandatory, and it was proven that the proposed piles are reasonable and sufficient. Petitioners contend that the proposed dune walkover actually is wider than four feet overall because the application drawings make it appear that the wooden piles are outside the walkway. However, it was proven that the drawings are in error to that extent and that the maximum width of the dune walkover actually will be four feet, as required by special condition 8 of proposed Permit GU-501. Petitioners contend that the proposed dune walkover must be denied because the site plan depicts it as terminating on the frontal dune created by the 2008 beach restoration project, which is contrary to the Dune Walkover Guidelines. Petitioners also contend that, while the Dune Walkover Guidelines require adequate elevation to clear the vegetation on the dunes, every part of the proposed walkover may not clear the dune entirely, according to the elevations in the site plan and construction drawings in the DeVries' application. Special condition 8 of proposed Permit GU-501 addresses Petitioners' contentions. It requires the proposed dune walkover to extend up to (but more than ten feet seaward of) the existing line of vegetation (not the line of vegetation at the time of the survey included as part of the DeVries' application) and requires that "the deck of the walkover structure shall maintain an elevation above the existing dune vegetation canopy . . . ." Also, under special condition 8, "[t]he optimum siting of the walkover structure shall be determined by the [DEP] staff representative during the preconstruction conference to provide maximum protection to the existing dune topography and vegetation located on the site." This will ensure compliance with the Dune Walkover Guidelines, which defines optimal siting. Petitioners contend that the proposed dune walkover must be denied because the DeVries' beach access easement does not extend to the existing vegetation line. Proposed GU-501 does not authorize a trespassing. See Fla. Admin. Code R. 62B-33.0155(4). If additional access easement is required to reach the beach, it will have to be acquired. Otherwise, the proposed dune walkover cannot be built. To mitigate for the minimized impacts from the DeVries' proposed construction, special condition 5 of proposed Permit GU-501 requires the DeVries to "plant a mix of a minimum of three native salt-tolerant species within any disturbed areas seaward of the control line, including the septic tank and drain field area." Obviously, there will not be mitigation planting where the concrete slab and dolomite driveway will be. The plants must be indigenous species or approved by DEP, and "a minimum of 80 percent of the planted areas shall be covered with the selected species." Sod and planting invasive nuisance species are not authorized. In addition, the site plan, which is part of the application, has a proposal to "maintain [planted native vegetation] adequate by temporary irrigation." Petitioners contend that the GU-501 conditions are not sufficient because the indigenous plants are not specified. However, the evidence provided reasonable assurance that appropriate species would be planted. Petitioners also contend that the GU-501 conditions are not sufficient because the success criteria are inadequate. Specifically, Petitioners compare the 80 percent coverage requirement in special condition 5 with the 90 percent success rate after 180 days and after 360 days required by the conditions of the beach restoration project. The beach restoration project's conditions could be viewed as less strict than the GU-501 conditions. In any event, the GU-501 conditions provide reasonable assurance of mitigation of the impacts. Petitioners contend that temporary impacts are not mitigated. However, temporary impacts will be minimized by special conditions 1 (pre-construction conference) and 3 (requirement of optimal construction fencing, including to protect the dune feature at southwest corner of the DeVries' property), 4 (only minimum disturbance required for construction allowed), and 9 (requirement to remove all rubble and construction debris to a location landward of the CCCL). This small level of risk from temporary disturbances during construction and before mitigation plantings take hold is unavoidable. It does not warrant the denial of a CCCL permit. In accordance with DEP's requirements, the proposed dune walkover is designed as a minor, expendable structure, and partitions of the house are designed to break away or be "frangible"—i.e., to "collapse from a water load less than that which would occur during a 100-year storm event without causing collapse, displacement, or other structural damage to the elevated portion of the building or supporting foundation system." See Fla. Admin. Code R. 62B-33.002(9). These designs help prevent larger, unmitigated storm damage to the beach and dune system. Due to its proximity, the McAlpins' house could sustain additional damage from the frangible parts of the DeVries' construction during such a storm. However, those risks are contemplated by DEP's frangibility requirements and are relatively small. Those risks do not warrant the denial of a CCCL permit. The County Right-of-Way There is a paved road called White Sands Drive that approaches the McAlpins' dolomite driveway and the proposed location of the DeVries' dolomite driveway from the east. The McAlpins' driveway extends from their house in a southeasterly direction, crosses the County right-of-way for Blue Water Circle (which has not been built), and connects with the paved surface of White Sands Drive in the curve between its east-west segment and its north-south segment. The DeVries' proposed dolomite driveway would terminate at the County right-of-way for Blue Water Circle to the northeast of the McAlpins' driveway, where the elevation is approximately 13 to 14 feet NAVD (similar to the elevation of the McAlpins' driveway). There is a relatively narrow dune feature between the McAlpins' driveway and the DeVries' proposed driveway that rises to an elevation of approximately 19 feet NAVD in the center of the dune feature. This dune is significant in that it has sufficient height and vegetation to provide protective value. See Fla. Admin. Code R. 62B-33.002(17)(a). In itself, it is not a primary dune because it does not have the configuration and alongshore continuity to afford a measurable level of protection to upland property and structures from the predictable erosion and storm surge levels associated with coastal storm events. See Fla. Admin. Code R. 62B-33.002(17)(b). This dune feature extends into the County right-of- way. Depending on the route taken, a car using the DeVries' proposed driveway might drive over or through a small part of the extreme southeastern end of this dune feature. It might be possible to avoid the dune feature entirely by hugging the eastern side of the driveway and, to the greatest extent possible, using the part of the County right-of-way that is used by the neighbor to the east to access their dolomite driveway from White Sands Drive. If not entirely avoiding the dune feature, it would be possible to drive over or through only a very small part of the dune feature where elevations are no greater than 14 to 15 feet NAVD. DEP and the DeVries contend that impacts to the County right-of-way should not be considered because they were not timely raised. However, Petitioners' allegations were broad enough to include consideration of those impacts. DEP and the DeVries also contend that impacts to the County right-of-way are prohibited by general and special conditions. General permit conditions include: Construction traffic shall not occur and building materials shall not be stored on vegetated areas seaward of the control line unless specifically authorized by the permit. If the Department determines that this requirement is not being met, positive control measures, such as temporary fencing, designated access roads, adjustment of construction sequence, or other requirements, shall be provided by the permittee at the direction of the Department. . . . * * * The permittee shall not disturb existing beach and dune topography and vegetation except as expressly authorized in the permit. Before the project is considered complete, any disturbed topography or vegetation shall be restored as prescribed in the permit with suitable fill material or revegetated with appropriate beach and dune vegetation. * * * (j) Any native salt-tolerant vegetation destroyed during construction shall be replaced with plants of the same species or, by authorization of the Department, with other native salt-tolerant vegetation suitable for beach and dune stabilization. Unless otherwise specifically authorized by the Department, all plants installed in beach and coastal areas - whether to replace vegetation displaced, damaged, or destroyed during construction or otherwise - shall be of species indigenous to Florida beaches and dunes, such as sea oats, sea grape, saw palmetto, panic grass, saltmeadow hay cordgrass, seashore saltgrass, and railroad vine, and grown from stock indigenous to the region in which the project is located. Fla. Admin. Code R. 62B-33.0155(3). In addition, special condition 4 of proposed Permit GU-501 states: "Existing vegetation shall be disturbed only to the minimum extent necessary to complete work within the authorized construction limits." Finally, proposed permit GU-501 does not authorize the construction of a driveway through the County right-of-way. See Fla. Admin. Code R. 62B-33.0155(4) (permit does not authorize trespass). Notwithstanding the conditions and limitation of proposed GU-501, it is reasonable to foresee that, to use the proposed driveway, cars will drive through the County right-of- way between the DeVries' proposed driveway and White Sands Drive. The extent to which the dune feature would be impacted must be considered in this case. See Fla. Admin. Code R. 62B-33.002(33) (impacts can be direct or indirect). It appears possible to use the DeVries' proposed driveway and avoid any parts of the dune feature in the County's right-of-way above the 14-foot NAVD elevation by using the part of the right-of-way currently being used for access by the DeVries' neighbor to the east. To minimize impacts, this should be required as an additional condition of GU-501. Construction of the proposed beach house and dune walkover on the DeVries' property will not alter the coastal system by measurably affecting the existing shoreline change rate, significantly interfering with its ability to recover from a coastal storm, disturbing topography or vegetation such that the dune system becomes unstable or suffers catastrophic failure or the protective value of the dune system is significantly lowered. As such, there will be no significant impacts. See Fla. Admin. Code R. 62B-33.002(33)(b).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order issuing GU-501, with an additional condition to use the part of the County's right-of-way currently being used for access by the DeVries' neighbor to the east and avoid any parts of the dune feature in the right-of-way above the 14-foot NAVD elevation to access the DeVries' proposed driveway. DONE AND ENTERED this 2nd day of November, 2011, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 2011. COPIES FURNISHED: Ross Stafford Burnaman, Esquire 1018 Holland Drive Tallahassee, Florida 32301-4508 Kelly L. Russell, Esquire Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 E. Dylan Rivers, Esquire Ausley and McMullen, P.A. 123 South Calhoun Street Tallahassee, Florida 32301-1517 Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Lea Crandall, Agency Clerk Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issue for determination at the final hearing was whether the Petitioner Blaha possessed the requisite standing to maintain this action and if so, whether the Applicant Aquarina Developments, Inc., established by a preponderance of the evidence entitlement to a permit from the Coastal Construction Control Line ("CCCL") which would authorize construction of the following: (1) twelve above-ground balconies extending five feet over the CCCL; (2) two roof overhangs extending approximately one foot over the CCCL; (3) two dune walkovers and four decks providing elevated beach access; and (4) a temporary fence extending no more than five feet beyond the CCCL. At the final hearing, the Respondent Aquarina Developments, Inc., (hereafter "Aquarina" or "Applicant") offered Respondent's Exhibits 1-16, which were admitted into evidence. Edward Fleis, Howard J. Teas, Bert Leltz and Ross Witham testified on behalf of the Respondents. Peter Pritchard, Rob Lee and Georges Blaha testified for the Petitioner. Additionally, public comment was taken as provided at Section 120.57(1)(b)(4), Florida Statutes. A Proposed Recommended Order has been submitted by the Respondent Aquarina Developments, Inc. To the extent that the proposed findings submitted by Respondent are not reflected in this Order, they are rejected as unsupported by the weight of credible evidence or as being immaterial to the results reached.
Findings Of Fact By application No. 775-020.61 filed on July 1, 1981, Respondent Aquarina requested a coastal construction permit for construction of portions of twelve cantilevered balconies, two roof overhang sections, a temporary construction fence, four elevated wooden decks, and two dune crossovers, all seaward of an established coastal construction control line ("CCCL") in Brevard County, Florida. The purpose of the proposed structures is to enhance utilization of the beach by residents of Aquarina's PUD located between the Atlantic Ocean and Mullet Creek, a tributary of the Indian River in South Brevard County, while at the same time inhibiting the deleterious effects of unrestrained pedestrian and vehicular access across the beach dune on the property. Respondent Aquarina's project is located on the barrier islands separated from the mainland by the Indian River, thirteen miles south of Melbourne and five miles north of Indian River County. Aquarina proposes to develop a condominium community approved as a PUD by Brevard County, with a projected population of 3,400 persons including 1,600 residential units, a commercial area, and 500 hotel rooms. The project includes at least two condo- mini urn buildings located entirely landward of the CCCL except for the following specific portions: Twelve cantilevered balconies ex- tending approximately five feet beyond the CCCL but not touching the ground; Two roof overhang sections extending approximately one foot beyond the CCCL; Two beach-dune walkover structures to be constructed a maximum of seventy- five feet seaward of the CCCL, which are to provide controlled beach access; Four elevated wooden observation decks constituting integral parts of the walkover structures; A temporary construction fence extending no more than five feet beyond the CCCL. On or about November 20, 1981, the Department indicated its intent to recommend to the Executive Director the issuance of the Applicant's coastal construction permit. After the granting of a requested extension of time, Petitioner Blaha filed objections and a Petition for the Initiation of Formal Proceedings under Section 120.57, Florida Statutes. The Petition raised three issues: Whether construction of the proposed minor structures seaward of the CCCT would harm sea turtles inhabiting the area at issue; Whether a new CCCL should have been set based on changing conditions in the area; Whether the additional shading caused by the proposed structures would harm the dune vegetation system. At the beginning of the hearing, the Hearing Officer heard argument and received evidence on the issues raised by the Motions to Dismiss filed by the Department and the Applicant. The Respondent's Motions raised three issues: Whether the Petitioner had standing to initiate this cause; Whether the alleged impact that the Applicant's proposed coastal construction would have on sea turtles lies within the jurisdiction of the Department and the Hearing Officer under Chapter 161 of the Florida Statutes; and Whether the exact configuration of the CCCL is a proper subject for consi- deration at a hearing challenging the proposed issuance of a coastal construction permit. Petitioner Blaha admitted that he did not live on the beach at issue and in fact lived on the west side of State Road A1A, three miles to the north of the Applicant's proposed project. The Petitioner stated that he was the Director of the Space Coast Branch of Friends of Animals, an environmental organization concerned about wildlife, although not representing the organization in this proceeding, and that he had a general interest in protecting the beach from erosion, a problem affecting everyone on the barrier island. In response to the argument that Petitioner Blaha had no special interest differing in kind from the interests of the general public, the Petitioner alleged that he runs on the beach and observes the sea turtles, arguing that this evinces a more than average interest in protecting the beach and its wildlife. The Hearing Officer also heard argument on whether the Department has jurisdiction to consider potential impacts on the nesting habitats of sea turtles from proposed coastal construction, under Chapter 161, Florida Statutes. Petitioner Blaha urged that although Section 161.053, Florida Statutes and the rules promulgated thereunder do not address sea turtles and their protection, the statute should be so interpreted. The Department responded that any jurisdiction it may have over sea turtles would be reposited in its Marine Resource Division, not in the permitting procedures for a coastal construction permit. In addition, federal laws protect endangered sea turtles, and the federal government has primary jurisdiction over the regulation of the nesting habitats of such sea turtles. Similarly, the Applicant and the Department pointed out that the Petitioner's criticism of the placement of the present CCCL falls outside the scope of a hearing on the issuance of a coastal construction permit, since Section 120.54, Florida Statutes provides for rulemaking proceedings for those attempting to change a rule established CCCL and Rule 16B-33.10, Florida Administrative Code, contains provisions for CCCL revisions or modifications on application of a riparian owner of property at or on the CCCL. Petitioner Blaha is not a riparian property owner and this was not a proceeding under Section 120.54, Florida Statutes. Respondent Aquarina established that it had taken and would continue to take all reasonable actions necessary to ensure the protection of sea turtles that inhabit the site through public relations campaigns and public advertisements to educate the public and especially the residents of the PUD and through architectural design efforts and dareful construction practices that will limit the impact of the proposed development on sea turtles and their nesting habitats. Moreover, to the extent that the development might have an impact on sea turtles, the source of the impact would not primarily be the structures at issue in these proceedings, but the buildings, parking lots, and other human habitation lying landward of the CCCL. The proposed temporary construction fence to be placed five feet beyond the CCCL will help conserve the dunes by limiting the potential impact of construction, and the Respondent Aquarina has agreed to restore that affected area to its natural state upon the completion of construction. Most importantly, the proposed dune crossovers will protect the dunes from the destruction that is occurring in the dunes to the north of the project and on the project site itself because of unrestrained pedestrian and vehicular traffic over and/or through the dunes and the accompanying destruction of dune vegetation in those areas. The dune crossovers are wooden walkways on raised pilings designed to have as little contact with the dunes as possible, with railings to restrain pedestrians from straying away from this direct access from the condominiums to the beach. The crossovers will make it unnecessary and undesirable for residents and visitors to create alternative foot paths through the heavy dune vegetation to the beach. Coupled with the educational program already being implemented by Aquarina, the dune crossovers should help to conserve the dunes. The Respondent Aquarina established that the incremental shading caused by the proposed roof overhangs extending about one foot beyond the CCCL and the cantilevered balconies extending approximately five feet beyond the CCCL would not significantly add to the shading from the buildings themselves, which lie entirely landward of the CCCL. The evidence showed that even the impact of the shading from the landward buildings would have no significant impact on the dune vegetation system or increase the rate of erosion or deterioration of the dune. See Rule 16B-33.02(23)(b), Florida Administrative Code. The additional impact from the minor structures for which the Respondent Aquarina seeks its permit should be minimal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent Department of Natural Resources, through its Executive Director, grant the requested construction control permit to the Applicant Aquarina Developments, Inc., subject to the conditions stated in the proposed permit (No. BE-80), the draft of which was attached to the Department's letter of November 20, 1981, notifying Petitioner Blaha of the Department's intent to issue the requested permit. DONE and ORDERED this 25th day of October, 1982, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 ApA1Achee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1982. COPIES FURNISHED: Georges Blaha 280 Flamingo Drive Melbourne Beach, Florida 32951 Deborah A. Getzoff, Esquire Assistant Department Attorney Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Clifford A. Schulman, Esquire GREENBERG TRAURIG ASKEW HOFFMAN LIPOFF QUENTEL & WOLFF, P.A. 1401 Brickell Avenue Miami, Florida 33131 Henry Dean, Esquire General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Elton Gissendanner, Executive Director Department of Natural Resources 3900 Commonwealth Building Tallahassee, Florida 32303
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Viente Condominium, a Gulf-front condominium located in the Town of Longboat Key (Town) in Sarasota County, has been in existence since 1980. At the time of its construction, or within a year thereafter, a dune walkover was constructed on the Gulf side of the condominium, running from the structure towards the Gulf. In 1988, a storm commonly referred to as the "No-Name Storm" affected the Sarasota County shoreline. As a result of the storm, the dune walkover on Petitioner's property was severely damaged, making its continued use unsafe. Given the condition of the walkover, a decision was made by the Petitioner to repair the structure by shortening its length and lowering its height, and to add a 12 foot by 16 foot viewing deck at the terminus of the shorter dune walkover structure. The Petitioner hired one Roger Miller, a local contractor, to perform the desired work. Miller was chosen because he was already engaged in work on property adjacent to Petitioner's and "was handy." Miller filed an application to conduct the work desired by Petitioner with the Town or about June 23, 1988. The application specified that the work to be conducted was as follows: REPAIR BEACH CROSSOVER: REDUCE ELEVATION, DELETE 42 FT. OF SEAWARD STRUCTURE. REPLACE TREAD. CONSTRUCT REST AREA WITH STEPS. Attached to the application was a sketch showing how the Petitioner intended to shorten the existing structure and add a 12 foot by 16 foot viewing deck with steps at the terminus of the walkover structure. The building permit was issued on July 26, 1988 which was several weeks after Miller began work on the Petitioner's property. On or about July 7, 1988, while monitoring a project on property adjacent to Petitioner's, the Department's area inspector observed Petitioner's contractor conducting work on Petitioner's property. The work taking place at the time consisted of nothing more than the removal of derelict pilings and other portions of the storm-damaged dune walkover. The area inspector approached the contractor to assess the magnitude of the work to be conducted. After satisfying himself that the work in progress, as observed by him and as described by the contractor, would not require a permit from the Department, the inspector left the site. Several days later, the Department's inspector returned to the area. At that time he observed that the Petitioner's contractor was not only removing portions of the walkover, but was also constructing a deck. The Department's inspector approached the contractor and informed him that a permit from the Department was necessary in order to construct an additional structure, such as a deck, on the property. After requesting to see the Department permit authorizing the construction and receiving no such permit, the inspector gave Petitioner's contractor a verbal cease and desist order as to the deck construction. At the time of the verbal cease and desist order, approximately 5-10% of the deck was completed. After receiving the inspector's order, the contractor ceased work and took actions which indicated to the inspector that he intended to leave the site. While Petitioner's contractor had made application to the Town on June 23, 1988 for a permit to conduct the work in question, at the time of the Department's verbal cease and desist order the contractor did not yet have a permit to conduct the work from the Town. On July 26, 1988, Claude Ozburn, who was then the president of the board of directors of the Petitioner association, went to the Town's building department to inquire as to the status of Petitioner's permit. As of the date of Mr. Ozburn's visit, no application had been submitted to the Department; Mr. Ozburn was under the impression, albeit a mistaken one, that the Town was responsible for submitting applications for building permits to the Department for approval. While conversing with a secretary at the building department regarding the application, Mr. Ozburn made contact with a Mr. Lovett, who was then employed by the Town as a Special Services Representative. Lovett had not seen the Petitioner's building permit application until this date since he no longer reviewed building permit applications. Although the record is not clear, it appears that Ozburn did not advise Lovett that the Department's area inspector had issued a verbal cease and desist order on the work already started because the inspector felt that a Department permit was required to construct a viewing deck at the terminus of the existing walkover. Again, it is not clear from the record, but it appears that Lovett, after reviewing the building permit application, called the Department to inquire about the status of the unfiled Department application. In the presence of Ozburn, Lovett spoke with the Department's area engineer, Carlos Carrero, regarding the status of the unfiled application. Mr. Carrero informed him over the phone that he was not familiar with the proposed project, so Mr. Lovett described for him the work proposed by Petitioner. Mr. Lovett described the work as simply the "reconstruction and repair of a storm-damaged dune walkover structure" (e.s.). Mr. Lovett did not offer specifics on the project, and no mention was made of the proposed viewing deck or of the fact that the area inspector had issued a verbal cease and desist order on the construction already begun on the viewing deck. Based upon Lovett's representation of the work as involving only the "repair and reconstruction" of a storm-damaged structure, Carrero informed Lovett that a permit from the Department was not necessary. Lovett then instructed the secretary to note on the Town application "per Carlos Carrero 2:13 p.m. 7/26/88," initialed the application, and instructed the secretary to process Petitioner's application. Prior to issuing the Town's permit, a Mr. Nowlen in the Building Department, confirmed with Carrero that "replacement of a storm-damaged dune walkover structure" would not require a permit from the Department. The inspector's next visit to the property occurred on November 5, 1991, at which time he discovered that construction on the deck in question had been completed. The inspector sought out a representative of the Petitioner and issued a Warning Notice, advising that construction of the deck constituted a possible violation of Chapter 161, Florida Statutes. After issuance of the Warning Notice, the inspector prepared a written violation report which identified as a violation the construction of a wooden viewing deck, seaward of the Coastal Construction Control Line (CCCL) without benefit of a permit from the Department. Subsequent to receipt of the Warning Notice, on December 30, 1988, the Department received an application from Petitioner seeking authorization for the deck. March 22, 1989, the Department issued a Final Order denying the application and ordering removal of the deck. The walkover is not a subject of that order, and its propriety is not a subject of this proceeding. The Department is the state agency given the responsibility for reviewing and approving applications to carry out excavation and construction activities on Florida's coastline. The Department's regulatory jurisdiction in this regard extends seaward of the CCCL which has been established in Sarasota County, Florida. The beach-dune system plays an important role in protecting upland property from severe storms. Dunes serve as a buffer, protecting the upland from the potentially-damaging storm surge and storm waves associated with severe storms. During a storm event, storm waves erode dune material from the shoreline. This eroded material is transferred offshore, and creates a sandbar. This sandbar serves to "trip" the waves before they reach the shoreline, thereby lessening their destructive force. Once the storm is over the sandbar moves back to the shoreline, and through the interplay of wind and vegetation re-forms a dune. Improperly-sited structures can impair the natural functioning of the system and jeopardize its protective value to the upland, as well as increase the danger of damage to upland structures in the area. The deck in question is constructed of wood, is 12 x 16 feet in size, and is located on the seaward face of the frontal dune on the Petitioner's property, seaward of the Sarasota County CCCL. The potential for adverse impacts from the structure in question would be its destruction during a "low-frequency" storm event; that is a storm event of such intense strength that it only occurs in either a twenty-year or fifty- year or hundred year return period. Upon the structure failing, the debris would be carried to either the area of habitable structures or to the active beach area. If carried to the area of habitable structures (the most dangerous area) by the storm winds or waves the debris would act as an aerodynamically or hydrodynamically propelled missile with the potential for damaging upland structures. Depending upon both the extent to which the structure breaks apart and the force of the storm, the deck alone could be expected to produce in the neighborhood of fifteen hundred pounds of mass being propelled toward inland structures. If the resulting debris from the deck were to stay within the seawardmost portion of the dune during the storm it would directly impact the dunes by constantly bumping into the dunes. Also, once the storm subsides and the debris settles down and is not removed, it could interfere with the growth of the existing or newly-emerging dune vegetation, and thereby interfere with dune recovery. This debris could also be a potential impact on the sea turtle habitat. There is a potential for additional erosion to be attributed to the deck in the event of a storm that did not destroy the deck but had some interaction with the deck. Without a storm there is a potential for an impact on the naturally- occurring dune migration and fluctuation because of the deck. The dune on Petitioner's property is migrating in a seaward direction at a very slow rate. As the dune continues to move seaward, the advancement of the vegetation which exists on the dune could be stunted because of the deck. This impact will have a greater potential in the event of a beach renourishment project because such a project would make more sand available to the system and encourage seaward migration of the dune. Such an impact has a potential for weakening the dune, and increasing the chances for damage to upland property during a storm event. While there was evidence that the deck has had no significant impact on the dune or the vegetation, there was insufficient substantial competent evidence to show that the potential impacts discussed above would not occur or that the deck would be eligible for a CCCL permit under applicable statutes and rules. Although the properties to either side of Petitioner are armored, there are areas to the south of Petitioner's property where a structure similar to the deck could be constructed. And, while the direct impacts to Petitioner's property may be moderate, the cumulative impact of the deck - the impact that would occur from repetition of similar structures along the shoreline, in similar locations - would result in a significant adverse impact on the beach- dune system. If the deck were to be located to the landward side of the frontal dune, the potential for this type of impact would be greatly reduced. If placed on the landward side of the frontal dune, the deck would be protected from low frequency storm events, and would be less likely to be destroyed.
Recommendation It is, accordingly, RECOMMENDED: That the Department enter a Final Order requiring the Petitioner to remove the 12-foot by 16-foot viewing deck located at the terminus of the Petitioner's walkover dune structure. DONE and ENTERED this 31st day of January, 1992, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 1992.
Findings Of Fact The Applicant. Intervenor, Jacksonville District, United States Army Corps of Engineers (Corps), has applied to Respondents, Department of Natural Resources and the Board of Trustees of the Internal Improvement Trust Fund (the State), for consent to maintenance dredge the federal navigation channel between Gordon Pass and Naples, Florida, and deposit beach-quality sand dredged from the channel on and immediately seaward of beaches south of Gordon Pass on Keewaydin Island (the spoil area). In 1960, Congress enacted Public Law 86-645 authorizing the Corps to dredge and maintain a channel from the Gulf of Mexico through Gordon Pass to the City of Naples. The channel was first dredged by the Corps in 1962. Maintenance dredging was performed in 1967,-1970 and 1979/1980. The City of Naples has been and is the local sponsor of the project. The Corps is authorized to place beach-quality dredged sand material on beaches selected by the local sponsor but only if deemed appropriate by the Corps and if no more costly to the Corps than other appropriate alternatives. The spoil area begins about 500 feet south of Gordon Pass and extends approximately 4,000 feet to the south. Except for the spoil area, Keewaydin Island from Gordon Pass to approximately one mile to the south is privately owned and privately patrolled. However, the spoil area was deeded to the State of Florida by quit claim deed in 1979. The spoil area is therefore publicly owned property and legally is available for use by the public. The only restriction on the public ownership of the spoil area is that the State not permit any use of the spoil area "which may be injurious to the business, person or property" of Key Island, Inc., the Florida Corporation which transferred the spoil area to the State, and that Key Island, Inc., reserves "a perpetual easement over and [sic] such property to the waters of the Gulf of Mexico for its successors, assigns, tenants, guests, and licensees." Petitioners' Standing. Petitioners, John R. Donahue and Rhodora J. Donahue, husband and wife (the Donahues), own the land constituting approximately the western half of the Point of land immediately to the north of Gordon Pass, including approximately 500 feet of beachfront (the Point). The Donahues acquired this property for approximately 2.5 million dollars. The Donahues also own a beachfront residence and lot some distance to the north of the Point worth at least $500,000. To the north of Gordon Pass almost as far as Doctors Pass approximately 6 miles to the north, the sand along the beaches is transported in a net southerly direction. At least some of the sand the Corps plans to remove during its maintenance dredging of the channel at Gordon Pass and deposit in the spoil area came from the beaches to the north of Gordon Pass, including the beaches in front of the Donahues' properties. The net southerly drift of this sand has contributed to the erosion of the beaches adjoining the Donahues' property, as well as the properties themselves. Due to ebb tidal shoals west of Gordon Pass, increased in size by channelization and dredging of Gordon Pass, the net littoral transport immediately and approximately one mile to the south of Gordon Pass reverses to a northerly direction. The net northerly littoral transport of this reversal is at a lower rate than the net southerly littoral transport to the north of Gordon Pass. In addition, a rock jetty along the northern end of Keewaydin Island and extending several hundred feet west into-the Gulf, while not sand tight, slows the transport of sand north into Gordon Pass. Finally, sand that does drift north into Gordon Pass settles at the bottom of the channel and is not carried across the channel to the Point and land to the north, including the Donahues' properties. For these reasons, the Donahues are substantially affected by the maintenance dredging of Gordon Pass and placement of beach quality dredge material in the spoil area so as to have standing as parties Petitioners in this case. Littoral Transport System Near Gordon Pass. Littoral transport is a function of the direction and strength of waves, primarily wind-driven in the Gulf of Mexico in the area of Naples and at highest strength during storms, and the angle at which the waves strike the beach. The angle at which waves strike a beach is a function of the direction of the waves (itself a factor of both the direction of the wind driving the waves and the contour of the ocean bottom) and the direction along which the beach is oriented at the Point of impact. The time of day and season of the year with their impact on tides, also affect littoral transport. Because littoral transport is effected by so many factors, littoral transport changes in both direction and quantity from time to time and at various places along a beach. Average net littoral transport is the result of the combined effect of all these factors over a stretch of beach over a period of time. Although conceptually there is such a thing as average net littoral transport, different Points along the beach have different littoral transport qualities at different times. The presence of inlets or passes is one cause of this phenomenon. The type of inlet or pass - whether natural', or having one or more jetties and/or being dredged - also affects littoral transport in and around an inlet or pass. Both the Naples beaches to the north of Gordon Pass and Keewaydin Island to the south of Gordon Pass show the effects of Gordon Pass on littoral transport. The Point property immediately to the north of Gordon Pass generally has been receding over time in recent years. This is because the increasing tidal prism (or quantity of water having to be transferred in and out of Gordon Pass to fill increasing inland waterways) has been blocked to the south by a jetty along the northern end of Keewaydin Island. As a result, the Point has suffered erosion. In addition, as previously mentioned, sand transported south into the Gordon Pass channel cannot return to the beaches on the Point. Neither does sand from Keewaydin Island get transported across the channel to the Point. In addition, the beach at the Point angles to the southeast, more nearly parallel to the predominant direction of waves striking the beaches at that Point. Sand at the Point is therefore transported more quickly and in larger quantities to the south into Gordon Pass than is sand transported to the south at points further north along the Naples beaches. Finally, seawalls located immediately to the north of the Donahues' property on the Point exacerbate erosion on the Point beaches. The beaches immediately to the south of Gordon Pass, on the other hand, have accreted and are stable. Due to the jetty at the northern end of Keewaydin Island, the average net northerly littoral transport at that location - both of naturally occurring sand and sand placed in the spoil area in previous Corps maintenance dredging of Gordon Pass - have accreted to the northern Keewaydin Island beaches to the extent of the capacity of the jetty to contain the sand being transported. Once capacity is reached, the sand is transported around the jetty to the west into the Gordon Pass channel and through the pervious jetty into the Gordon Pass channel at various times depending upon weather and tide conditions. However, to the south, probably somewhat south of the southern end of the spoil area, the average net northerly littoral transport again reverses. Having escaped the reach of the effect of Gordon Pass, the littoral transport system returns to its average net southerly drift. In the area of this reversal. Point (the precise location of which, of course, varies from time to time), the beaches of Keewaydin Island are subject to rather severe erosion. The beaches in that area are eroded both to the north and to the south and are nourished from neither direction to significant degree. Further south on Keewaydin Island, the beaches are more stable. Near the southern tip of Keewaydin Island, at a natural inlet called Hurricane Pass, the beach is accreting and Keewaydin Island is expanding to the south. The Naples beaches to the north of the Point are generally stable. There has been some accretion near the Naples fishing pier at 12th Avenue South. However, there are some places along the Naples beach which are eroding. These areas include the area of the reversal Point south of Doctors Pass to the north, beaches in front of seawalls, and beaches immediately downdrift of the several groins along the Naples beaches. Public Use of The Beaches. The Naples beaches between approximately 7th Avenue North and 20th Avenue South are readily accessible to the public and are moderately to heavily used by the public, especially on weekends and during the four-month winter tourist season. Access to the Naples beaches south of 20th Avenue South is limited, with only three public access Points along that one to two mile stretch of beach. The property contiguous to the Naples beaches is privately owned. Essentially, as one continues south along the Naples beaches towards the Point, the beaches become less accessible to the public, and, as a practical matter, are used more by the owners of the substantial beachfront residences, their friends and guests. Like the property contiguous to the Naples beaches, Keewaydin Island is almost entirely privately owned. The only exception is the spoil area itself. In addition, like the Naples beaches, the beaches seaward of the mean high water line also are in the public domain. However, legal access to the public portions of Keewaydin Island is only by boat from the Gulf side. In addition, Key Island, Inc., through its representatives, has discouraged public use of even the public portions of Keewaydin Island by claiming that they are part of Key Island, Inc.'s property. As a result, the beaches of Keewaydin Island are virtually unused by the public. The only exception to this is the extreme southern spit of Keewaydin Island where the sand has been accreting and expanding the public beach. Access to the southern spit also is limited to boat, but it is accessible from all three sides of the spit, and the spit is used more by the public for recreational purposes than is the rest of Keewaydin Island. Development Along The Beaches. The Naples beaches are almost fully developed. From the Point north to approximately 4th Avenue North, development is primarily single family residences. From 4th Avenue North north to Doctor's Pass, development is mostly in the form of condominiums or other multi-family development. The residences in Olde Naples from approximately 5th Avenue South to the Point are relatively close to the beach, having previously been constructed seaward of the current coastal setback line. Likewise, several seawalls in the area, including in front of the condominium and other multi-family development to the north also are quite close to the beaches. On the other hand, Keewaydin Island is largely undeveloped. Besides the cluster of structures making up the Key Island Club on the northern tip of the island, there is no other development at all on the property owned by Key Island, Inc. In addition, there are only approximately 10 cottages on the part of the island south of the property owned by Key Island, Inc. Much of the island consists of mangroves and estuaries not suitable for development and not likely to be developed. In fact, Keewaydin Island is under consideration for purchase and preservation by the State under the Conservation and Recreation Lands Trust Fund Program. Need For Maintenance Dredging. Due to the littoral drift previously discussed, Gordon Pass and the channel to Naples needs to be dredged for navigation purposes every five to six years. The channel was last dredged in 1979 or 1980. The Corps usually maintenance dredges on a four-to-five year cycle, depending on weather conditions and other factors affecting littoral drift. While weather was relatively mild in the 1970's, weather in the early 1980's has been relatively severe. As a result, the channel now needs maintenance dredging along with the other maintenance dredge projects now taking place in southwest Florida. If the channel is not dredged now, it probably will be overdue for dredging by the time of the next maintenance dredging cycle in approximately 1990. Propriety Of The Spoil Area. At this time, the system of groins north of Gordon Pass are not adequate to contain or significantly slow the flow of sand to the south. The groins are in disrepair, and the terminal groin is approximately 200 feet or more shorter than it needs to be for this purpose. Sand pumped from the dredge north the same distance as sand is planned to be pumped south to the spoil area would make its way back into the Gordon Pass channel within two years. Several studies of the Naples beaches, beginning with a Corps study in 1972 through a "study to end all studies," as former City of Naples Mayor Rolland Anderson put it, by a blue ribbon committee appointed by the City of Naples, all recommended repair of the groin system and the extension of the terminal groin so as to enable the Corps to deposit dredged beach-quality sand material north of Gordon Pass. In 1982, the City of Naples finally took action to apply for State permits and funding of that project, among others, and to fund the City's portion of the cost of the project. However, the City withdrew its application in November 1982 and did not re-commit itself to the project until August 1985. The City now has applications for State funding and permits pending but funding and start of the project cannot be anticipated for another 1 to 2 years. Without an improved groin system and extension of the terminal groin, dredged sand would have to be spread on the Naples beaches to the north starting at least 6,000 feet to the north of Gordon Pass in order to prevent the sand from moving in the Gordon Pass channel within the Corps' normal maintenance dredging cycle. The City was advised as early as 1979 that this option for deposit of beach-quality dredged sand was only available if the city would fund the extra cost of pumping the sand that distance to the north, estimated at the time to be approximately $3-66,000, and would procure all necessary easements and permissions from affected private property owners. The City of Naples has never taken any of the steps necessary to effectuate this option. Given current circumstances, there is no viable alternative to the proposed spoil area. The Corps refuses to fund the extra cost of pumping dredged beach quality sand material an additional 6,000 feet to the north. Neither the City of Naples nor anyone else has agreed to fund the extra cost. Pumping sand an equal distance to the north (i.e., starting at 500' and spreading sand from there 4000' to the north) is inappropriate given the current condition of the groin system on the Point. (Such an option would maximize, not minimize, the need for maintenance dredging.) Given current circumstances, it is not contrary to the public interest to maintenance dredge the Gordon Pass channel to Naples and deposit beach-quality dredged sand in the proposed spoil area. The spoil area is primarily north of the reversal Point to the south of Gordon Pass in the littoral transport system in and around Gordon Pass. For that reason, a substantial portion of the sand deposited in the spoil area can be expected to eventually make its way back into the Gordon Pass channel in the future. The next time the Gordon Pass channel is maintenance dredged, this same sand can be redeposited elsewhere given the right circumstances. From a coastal engineering standpoint, beach quality sand dredged from the Gordon Pass channel should be returned to the place in the littoral transport system from which it came, i.e., some to the north and some to the south. As previously stated, sand cannot be redeposited to the north while minimizing the need for future maintenance dredging without either improving the groin system and extending the terminal groin on the Point or depositing the sand a substantial distance to the north of the Point. Redepositing the sand further to the north would have the additional benefit of maximizing recreational benefit to the largest portion of the public and helping to protect the valuable beachfront private property from storms. But the question whether to take the steps and provide the funding necessary to achieve these benefits is essentially a political question.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Respondents, Board of Trustees of the Internal Improvement Trust Fund and Department of Natural Resources, grant the application of Intervenor, Jacksonville District, United States Army Corps of Engineers, for consent to maintenance dredge the Gordon Pass to Naples channel and deposit beach-quality dredged sand in the proposed spoil area on Keewaydin Island. RECOMMENDED this 18th day of April, 1986, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings 2009 Apalachee,Parkway The Oakland Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of April, 1986. APPENDIX Rulings On Corps' Proposed Findings Of Fact. The substance of the following Corps' proposed findings of fact are accepted as substantially factually accurate and are incorporated in the findings of fact in the same or a modified form to the extent necessary: 1-3, 5, 7-10, 13, 14, 17, 19 and 21. The Corps' proposed findings of fact 18 would have been included in the paragraph immediately above except that it is unnecessary. The Corps' finding of fact 4 is rejected as argument. The Corps' proposed finding of fact 6 is rejected as argument and conclusion of law. The Corps' proposed finding of fact 11 is rejected as unnecessary. As to Corps' proposed finding of fact 12, the last sentence is rejected to the extent that it applies to the northern end of Keewaydin Island as being contrary to the greater weight of the evidence and/or the findings of fact. Otherwise, the substance of the proposed finding is accepted as substantially factually accurate, but subordinate and unnecessary. The Corps' proposed finding of fact 15 is rejected as argument, subordinate and unnecessary. The Corps' proposed finding of fact 16 would be included in paragraph 1 above except that the last two sentences are rejected as contrary to the greater weight of the evidence and/or findings of fact. The Corps' proposed finding of fact 20 would have been included in paragraph 1 above except that the third sentence is rejected as contrary to the greater weight of the evidence and/or findings of fact. Ruling On State's Proposed Findings Of Fact. The substance of the following State's proposed findings of fact are accepted as factually accurate and are substantially incorporated in the findings of fact in the same or a modified format to the extent necessary: 1-4, 10, 12, 13, 17, 21, 22. The substance of State's proposed findings of fact 5-9 are accepted as substantially factually accurate but are rejected as unnecessary. The substance of State's proposed findings of fact 14-16 are accepted as substantially factually accurate but are rejected as subordinate. State's proposed findings of fact 11, 18, 23, and 24 are rejected as argument. State's proposed findings of fact 19, 20, and 25 are rejected as contrary to the greater weight of the evidence and/or the findings of fact. State's proposed finding of fact 26 is accepted in part and rejected in part, specifically as to sub-paragraphs (b), (c) and (d). State's proposed finding of fact 27 is rejected in part as argument and in part as contrary to the greater weight of the evidence and/or the findings of fact. Rulings On Petitioners' Proposed Findings Of Fact. The substance of the following Petitioners' proposed findings of fact are accepted as factually accurate and are substantially incorporated in the findings of fact in the same or modified format to the extent necessary: 1, 3-23, 28, 30, 43, 44, 60, 62, 64, 65, 67, 68, 72, 77, 78, 80. Petitioners' proposed finding of fact 2 would be included in paragraph 1 above, except that the evidence was the dredging itself will not cause or exacerbate erosion of Petitioners' property or the public beaches north of Gordon Pass. Petitioners' proposed finding of fact 25 would be included in paragraph 1 above except that the sand will not "soon move on to privately-owned and privately patrolled beaches," depending upon the definition of "soon." The sand will move to the north more slowly than sand north of Gordon Pass will move to the south. Only the sand at the extreme north of the State-owned spoil area will "soon" move on to the 500 foot strip of privately-owned beach between the State-owned property and Gordon Pass. Much of the rest of the sand will gradually move along the rest of the 4,000-foot strip of State-owned property and eventually reach the 500 feet of privately owned-beach. Ultimately, most of this sand will continue around or through the jetty on the northern end of Keewaydin Island and will settle in the Gordon Pass channel. A relatively small portion of the sand will spread to the south of the spoil area, primarily because of a scouring action, will reach the reversal point and will be carried south of the spoil area. Petitioners' proposed finding of fact 26 would be included in paragraph 1 above except that whether dredging sand is the cheapest way to nourish beaches depends upon the distance between the dredging operation and the beaches to be re-nourished. Petitioners' proposed finding of fact 29 would be included in paragraph 1 above with the clarification that "north of Gordon Pass" refers only to the Point. Petitioners' proposed finding of fact 45 would be included in paragraph 1 above except that the length of time in the last sentence are exaggerated and are erroneously assumes that none of the previously dredged sand ever makes it back into the Gordon Pass channel. Petitioners' proposed finding of fact 49 would be included in paragraph 1 above except that "holes large enough to swim through" appears to be an exaggeration or at least an isolated case based on the evidence. Petitioners' proposed finding of fact 61 would be included in paragraph 1 above with the clarification that the Corps' differing positions on placement of sand north of Gordon Pass varied in part depending upon assumptions as to the groin system, in part depending upon assumptions as to the net littoral drift and in part depending upon differences of opinion among members of the Corps. Petitioners' proposed finding of fact 70 would be included in paragraph 1 above with the clarification that the Corps' willingness to place sand on beaches north of Gordon Pass refers to starting sand placement between one-half mile and one mile north of Gordon Pass and spreading it one to two miles north from there. Petitioner's proposed finding of fact 74 would be included in paragraph 1 above with the clarification that DNR has, of course, participated in the Corps' application and in this proceeding. Petitioner's proposed finding of fact 29 would be included in paragraph 1 above except that the Corps is in the maintenance dredging business, not the beach re-nourishment business, and the Corps is legally obligated to place sand in the most economical appropriate spoil area unless sufficient funds are provided to cover the extra cost of more costly alternatives such as beach re-nourishment. The substance of the following Petitioners' proposed findings of fact are accepted as substantially factually accurate but are rejected as subordinate and unnecessary: 31-34, 37-42, 46, 47, 52, 55-57, 63, 66, 69, 71, 73 and 82. Petitioner's proposed finding of fact 35 would be included in paragraph 12 above except to the extent that the second sentence might infer that the wishes of a local sponsor override the Corps' legal obligation to deposit spoil material in the most economical appropriate place. Petitioners' proposed finding of fact 36 would be included in paragraph 12 above except that it is not particularly "noteworthy" in this case that there was no resolution in 1984/86. Petitioners' proposed finding of fact 58 would be included in paragraph 12 above except to the extent that the citations imply that the Corp did not seek the City's input and receive the City's input that the sand should be deposited south of Gordon Pass as it was previously. Petitioners' proposed finding of fact 24 is rejected as contrary to the greater weight of the evidence and/or the findings of fact. As to Petitioners' proposed finding of fact 48, the first clause is accepted but the second clause alleging placement closer than 500 feet is rejected as contrary to the greater weight of the evidence an/or the findings of fact. Petitioners' proposed finding of fact 50 is rejected as contrary to the greater weight of the evidence and/or the findings of fact. Petitioners' proposed finding of fact 51 is rejected as contrary to the greater weight of the evidence and/or the findings of fact. 20. As to Petitioners' proposed finding of fact 53, the fourth, fifth, and sixth sentences are accepted, but the first and third sentences are rejected as contrary to the greater weight of the evidence and/or findings of fact. Two-foot overdredge for advance maintenance cannot be considered more than the minimum amount necessary to accomplish the Corps' purpose. There was evidence of shoaling and general filling of the channel. There was no evidence to suggest that certain parts of the channel, particularly the area of Gordon Pass, should not be deeper and wider than other parts of the channel between Gordon Pass and Naples. As to Petitioners' proposed finding of fact 54, the first sentence is accepted, but the second sentence is rejected as contrary to the greater weight of the evidence and the findings of fact. Petitioners' proposed finding of fact 59 is rejected as contrary to the greater-weight of the evidence and/or findings of fact. It is true that there are no survey markers. There is the potential for confusion as to the precise location of the State- owned property. Regarding movement of the sand onto private land up against the jetty, the findings of fact show that natural forces will eventually move the sand onto the private property and around and through the jetty back into Gordon Pass. The Corps is not responsible for, and the State should not consider, the possibility of theft of sand. Regarding Petitioners' proposed finding of fact 75, the second sentence is rejected as contrary to the greater weight of the evidence and/or findings of fact, but the rest is accepted. Petitioners' proposed finding of fact 76 is rejected as contrary to the greater weight of the evidence and/or findings of fact. Petitioners' proposed finding of fact 81 is accepted in part and rejected in part. The proposed finding ignores factors such as the exact distance north the sand would be pumped, the cost of pumping sand that distance, and the condition of the groin system north of Gordon Pass. Regarding Petitioners' proposed finding of fact 83, the Corps' proposal does not "minimize future dredging at Gordon Pass" in the strictest sense, but the question in this case is not what else the Corps could do to minimize maintenance dredging besides the maintenance dredging itself, but rather is whether the maintenance dredging itself is to be conducted in a manner so as to minimize maintenance dredging in the future. Petitioner's proposed findings of fact 84 and 85 are rejected as contrary to the greater weight of the evidence and/or findings of fact. COPIES FURNISHED: Dr. Elton J. Gissendanner Executive Director Department of Natural Resources 3900 Commonwealth Blvd. Douglas Building Tallahassee, Florida 32303 Jacob D. Yarn, Esquire David S. Dee, Esquire Martha Harrell Hall, Esq. P. 0. Box 190 Tallahassee, Florida 32301 Donald E. Hemke, Esquire P. 0. Box 3239 Tampa, Florida 33601 Spiro T. Kypreos, Esq. Assistant General Counsel Department of Natural Resources 3900 Commonwealth Blvd. Douglas Building, Suite 1003 Tallahassee, Florida 32303 Harrison D. Ford, District Counsel Steven C. Calvarese, Assistant District Counsel Jacksonville District United States Army Corps of Engineers P. 0. Box 4970 Jacksonville, Florida 32232-0019 ================================================================= CORRECTED AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF NATURAL RESOURCES JOHN F. DONAHUE and RHODORA J. DONAHUE, husband and wife, Petitioners, vs. DOAH Case No.: 85 3829 STATE OF FLORIDA, DEPARTMENT OF NATURAL RESOURCES, and THE BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND, Respondents. /
The Issue The issue in this case is whether the Department of Environmental Protection (DEP) should issue Coastal Construction Control Line (CCCL) Permit ES-540 to Bobby L. Warner, Joseph W. and Helen Belanger, and Donald Ray Stephens (Applicants) for structures seaward of the CCCL on Perdido Key in Escambia County, Florida.
Findings Of Fact Undisputed Facts Petitioners stated in the Pre-Hearing Stipulation and confirmed at the hearing that adverse impacts to marine turtles are not at issue in this proceeding. The Petition did not allege that the structures authorized by the Final Order are or would be seaward of the seasonal high-water line now or within thirty (30) years of October 2004. The Petition did not allege that the structures would interfere with public access. Project Description Applicants own two parcels of property comprising 1.19 acres on Perdido Key, Escambia County, Florida, between DEP monuments R-1 and R-2 (the Property). The DEP permit file indicates that the eastern parcel is owned by Bobby Warner and the western parcel is owned by Joseph and Helen Belanger. Portions of the Property extend from the south right-of-way of Perdido Key Drive on the north to the mean high-water line (MHWL) of the Gulf of Mexico on the south. There are two existing multi-family dwellings on the Property. The dwelling on the western parcel owned by the Belangers has two units, while the dwelling on the eastern parcel owned by Ms. Warner has four units. Their overall dimensions are approximately 51.2 feet by 54.4 feet for the easterly structure and 44.1 feet by 31 feet for westerly structure, not including decks or stairs. The seaward limits of the structures are approximately 285 feet and 303 feet landward of the MHWL. Applicants propose to demolish the two existing multi-family structures and construct a 15-unit, multi-family dwelling (the Dwelling) measuring 70 feet in the shore normal direction by 80 feet in the shore-parallel direction on piles with understructure parking, a 38.1-foot by 33.3-foot swimming pool on the seaward side of the Dwelling, a deck, a five foot wide dune crossover seaward of the Dwelling, a driveway and parking area of concrete pavers, and a dune enhancement project (Project). The Project, known as BellaVista, would extend as much as 193 feet seaward of the current (the 1986) CCCL. The Dwelling will be constructed in conformance with the structural requirements of the Florida Building Code (FBC), which are applicable to structures located seaward of the CCCL, as set forth in Section 3107, FBC. The Dwelling will be elevated on and anchored to a pile foundation which will withstand all reasonably anticipated erosion, scour, and loads resulting from a 100-year storm, including wind, wave, hydrostatic and hydrodynamic forces acting simultaneously with typical dead loads. Its lowest horizontal structural member will be elevated above the 100-year storm elevation as determined by DEP in the report entitled “One-Hundred Year Storm Elevation Requirements for Major Habitable Structures Located Seaward of a Coastal Construction Control Line.” The 100-year storm elevation requirement for the Dwelling is +15.4 feet NGVD,2 while the elevation for the lowest structural member of the Dwelling is +28 feet NGVD, 13.4 feet above the elevation requirements of the FBC. The most seaward point of the foundation of the Dwelling is located 18 feet landward of the most seaward point of the foundation of the existing structure on the eastern parcel and is landward of the seaward side of both of the existing dwellings. The proposed pool and pool deck, which extends seaward of the Dwelling's foundation, also are located landward of the seaward side of the existing dwelling on the eastern parcel and approximately in the same location as all but the extreme eastern part of the existing building on the western parcel, which extends a few more feet seaward. The seaward side of the Dwelling is 306 feet landward of the MHWL. DEP very commonly issues permits for structures closer to the MHWL (i.e., more seaward) than the Project. Many structures are permitted within 100 to 150 feet of the MHWL, and some within 60 feet. Property Description Before Hurricane Ivan struck in mid-September 2004, there was an extensive, well-established, healthy, growing and well-vegetated dune system on the Property seaward of the Project that extended to the east and west in front of and beyond the Atlantis and Spanish Key condominiums. This continuous dune system consisted of numerous mounds of sand ranging in height from 6 or 7 to 11 feet above MHWL, and established a dune line seaward of the existing structures on the Property and the Project. The more seaward of these dunes were the frontal dunes. Before Ivan, the vegetation line was approximately 150 feet seaward of the existing structures on the Property. Petitioners argue that there is a definite and unique primary dune line running straight between points where historic survey data indicate that a primary dune existed approximately 223 feet seaward of DEP range monument R-1 and 270 feet seaward of monument R-2. If there were such a dune line, the line would run through the BellaVista Project. But the evidence does not support an inference that such a primary dune line existed between those two points. Rather, the more persuasive evidence was that the dune system on Perdido Key consisted of dune mounds with an irregular pattern, not a continuous dune line or bluff. At the time Ivan struck Perdido Key and the Property, there was no primary dune or other dune beneath or landward of the two existing structures on the Property. Probably, the structures eliminated and then prevented the re- formation of dunes at that location. Ivan was a major magnitude storm with a storm surge of 15-20 feet, which exceeded the predicted storm surge of a 100-year storm in Escambia County. The existing dwellings on the Property survived the storm but were severely damaged. Ivan destroyed all of the vegetation that existed on the Property and on the beach dune system to the east and west. Ivan also destroyed all of the dunes on the Property and on the beaches to the east and west of the Property. Towards the end of March 2005, Escambia County placed a sand berm on the beach in front of the existing structures on the Property and along the beach to the east and west of the Property. The placement of the sand was partially funded by the Federal Emergency Management Agency (FEMA) and is meant to provide some immediate protection for upland structures, especially those that have been damaged or are vulnerable to damage, from higher-frequency storms. Initially, it would provide less protection from lower- frequency storms and, obviously, would be destroyed by a storm like Ivan. However, depending on future storm events, it would provide some protection and could contribute to recovery of the beach and dune system over time. The FEMA berm is located just seaward of the BellaVista Project site. It is located more landward to the east and west of the BellaVista Property and bends seaward around the existing buildings on the Project site. Moving from east to west, the berm begins to bend seaward at about the middle of the Spanish Key building and then, after crossing close in front of the existing buildings on the BellaVista site, bends back landward again at about the middle of the Mediterra building, which is adjacent to and west of the Atlantis building. The bowed-out segment of the FEMA berm in front of the existing buildings on the BellaVista site will be more susceptible to storm erosion than the segments to the east and west that are more landward. Petitioners argue that the FEMA berm was designed and intended to follow the supposed historic primary dune line but had to bend around the existing buildings on the BellaVista site because those buildings straddled the line. But, again, the suggested inference of a historic primary dune line is not supported by the evidence. In addition, the evidence does not support the inference that the placement of the FEMA berm followed a pre-selected line, but rather suggests that its placement was dictated by its purpose to provide some protection for damaged and vulnerable structures and properties. The top of the FEMA berm has an approximate height of 13 feet NGVD, or about 6 feet above grade, which is comparable in height to the dunes that existed before Ivan. From the landward toe, the berm rises approximately 6 feet at a slope of 2:1. The crest or top of the berm is 8 feet wide. The berm then slopes approximately 40 feet downward to its seaward toe. The overall width of the berm is 58 feet in the north-south direction. The FEMA berm is a mound of loose, sand-sized sediment which lies upland of the beach and was deposited by an artificial mechanism. It is subject to fluctuations in configuration and location. As such, the sand berm is a dune, as defined by Florida Administrative Code Rule 62B-33.002(17). See Conclusion of Law 48, infra. The FEMA dune is now the only dune on the Property or adjacent properties. The crest of the FEMA dune is approximately 30 feet seaward of the Project’s pool and deck. As such, the entire Project is landward of the toe of the FEMA dune. (Applicants modified their application to reflect the FEMA dune through admission of Applicants' Exhibits 9 and 10 into evidence.) The dune enhancement project proposed by the Applicants and required by the Final Order is located partially landward of the FEMA dune and partially atop the landward slope of that dune. The dune enhancement project will enhance the FEMA dune and expand the width of the dune approximately 10-15 feet on the landward side, making the crest of the new dune on the Property 25 feet wide at an elevation of 13 feet. The dry sandy beach on the Property and in the area to the east and west remains wide even after Ivan. The existing structures on the Property are now approximately 288 feet landward of the MHWL. Survey data taken at monuments R-1 and R-2 show that the shoreline at these monuments has historically accreted from the 1860s to the present. The rate of accretion increased from 1974 to 1996. Between 1985 and 1996, the MHWL at R-2 moved 100 feet seaward, a rate of approximately 6 feet/year. Similarly, between 1985 and 1996, the MHWL at R-1 advanced 80 feet, a rate of approximately 7 feet per year. Even if the data in the vicinity of these monuments indicate deceptively high rates of accretion because there were no data points in Alabama to include in the averaging, the accretional trend is clear from the evidence. The Project will not affect this accretional trend. Along with accretion, the dune system in the area of the Property also was growing prior to Ivan, and dune recovery seaward of the new FEMA dune is expected. The primary dunes that existed pre-Ivan on the adjacent properties immediately seaward of the Spanish Key and Atlantis condominiums, which included dunes with elevations of 16-17 feet, will take 25-50 years to rebuild through natural processes, such as aeolian (wind-driven) transport. Some may never recover to previous elevations. The lower dunes, such as those that existed on the Property, may recover in ten years. Since the Project is located landward of the FEMA dune, it will not interfere with post-storm recovery of the dune system. Line of Construction Petitioners contend that there is a reasonably continuous and uniform construction line seaward of the current (the 1986) CCCL "in the immediate contiguous or adjacent area" and landward of the proposed Project--namely, along the line of the former (the 1975) CCCL. In fact, such a line of construction exists extending approximately 500 feet west, and approximately 1,500 feet east, of the proposed Project, but no farther, as there are structures more seaward beyond those points. In addition, in making their "line of construction" argument, Petitioners ignore the existing structures on the proposed Project site. The line of construction is not a prohibition in and of itself. Rather, it is only one of several criteria that must be balanced in determining whether or not to approve a CCCL permit application. The line of construction is a factor for new construction but not for rebuilding or relocation of a building landward. It is the position of DEP and Applicants that the Project qualifies as a rebuilding or relocation and that "line of construction" does not apply. Regardless whether the "line of construction" applies, it must be considered, weighed, and balanced against all of the other application processing factors. See Conclusion of Law 56, infra. Applicants contend that protection of the beach dune system through application of the line of construction provisions is not supported by the Petitioners’ own testimony. They argue that Susan Long, testifying on behalf of and as an agent of Spanish Key, admitted that Spanish Key would not oppose the project at its proposed location were it only two stories tall and would not oppose the repair of the existing structures. Likewise, they argue Boyd Bond, testifying on behalf of and as an agent of Atlantis, stated that Atlantis would not oppose the repair of the two existing multi-family dwellings of the Property. Actually, both testified that they would not oppose those undertakings if Applicants were entitled to permits for them. Significant Adverse Impacts Florida Administrative Code Rule 62B-33.002(31) defines various degrees and kinds of impacts for purposes of CCCL permitting: "Impacts" are those effects, whether direct or indirect, short or long term, which are expected to occur as a result of construction and are defined as follows: "Adverse Impacts" are impacts to the coastal system that may cause a measurable interference with the natural functioning of the system. "Significant Adverse Impacts" are adverse impacts of such magnitude that they may: Alter the coastal system by: Measurably affecting the existing shoreline change rate; Significantly interfering with its ability to recover from a coastal storm; Disturbing topography or vegetation such that the dune system becomes unstable or suffers catastrophic failure or the protective value of the dune system is significantly lowered; or Cause a take, as defined in Section 370.12(1), F.S., unless the take is incidental pursuant to Section 370.12(1)(f), F.S. "Minor Impacts" are impacts associated with construction which are not adverse impacts due to their magnitude or temporary nature. "Other Impacts" are impacts associated with construction which may result in damage to existing structures or property or interference with lateral beach access. (Other applicable rule definitions are set out in Conclusion of Law 48, infra.) Only "significant adverse impacts" (not all impacts or even all adverse impacts) have to be eliminated before DEP may issue a CCCL permit. Vegetation Vegetation on the Property itself was limited pre- Ivan due to development, and Ivan largely destroyed what vegetation there was on the Property. As a result, any disturbance of any existing vegetation during construction will be de minimis. In addition, since there no longer are any dunes on the Project site, no destabilization of any dune or any "significant adverse impact" to the beach and dune system due to increased erosion by wind or water will result from construction of the Project. To the contrary, Applicants have submitted a dune enhancement plan tailored for site conditions as they now exist post-Ivan. Special Condition 9 of the proposed Permit requires that Applicants plant soil-stabilizing native grasses throughout the dune enhancement area in staggered rows 18 inches apart and also requires the achievement of a given survival rate. The dune enhancement plan includes planting which constitutes a significant improvement to the native vegetation situation on the site. The Project will not interfere with the re-emergence of vegetation seaward of the Project. Disturbance of In Situ Sandy Soils Construction of the Project will not result in the removal or disturbance of in situ sandy soils of the beach and dune system to such a degree that a "significant adverse impact" to the beach and dune system would result from either reducing the existing ability of the system to resist erosion during a storm or lowering existing levels of storm protection to upland properties and structures. The only excavation will be for foundation pilings and the swimming pool. Obviously, excavation for the foundation will be filled with the pilings, and none of the sand excavated for that purpose will be removed from the site. All the sandy material excavated for the pool will be placed on site seaward of the structures and the CCCL within the dune enhancement area and in the immediate area of the construction. In addition, the Project will result in the net addition of 658 cubic yards of sand to the beach dune system seaward of the CCCL as part of required beach enhancement. The additional sand to be placed as part of the dune enhancement plan will, in fact, enhance the ability of the system to resist erosion during a storm and will raise existing levels of storm protection to upland properties and structures. Structure-Induced Scour Construction of the Project will not cause an increase in structure-induced scour of such magnitude during a storm that the structure-induced scour would result in a "significant adverse impact." Scouring around piles in a storm is very localized and miniscule and would extend no more than two feet away from the piles and will not reach adjacent properties. Any storm-induced scour will be less than 0.02% of the erosion caused by a 100-year storm event. Scour from the proposed structures will not measurably affect shoreline change rates. Scour caused by the proposed structures will not significantly interfere with beach dune system's ability to recover from a coastal storm. The minimal scour caused by the Project will not disturb topography or vegetation such that the dune system becomes unstable or suffers catastrophic failure. Missiles The Project has been designed to minimize the potential for wind and waterborne missiles during a storm. The Dwelling will be constructed in conformance with the structural requirements of the FBC for structures located seaward of the CCCL, as set forth in Section 3107, FBC. The Dwelling will be elevated on and anchored to a pile foundation which will withstand all reasonably anticipated erosion, scour, and loads resulting from a 100-year storm, including wind, wave, hydrostatic, and hydrodynamic forces acting simultaneously with typical dead loads. As designed, it will not interact with the beach/dune system in storm events and will allow the free movement of sand, water, storm surge, and waves under the building. In the event of another hurricane, storm surge and waves would pass under the Dwelling and not impede such natural processes. Conformance with the FBC minimizes missile potential. Petitioners' coastal engineering expert witness conceded that he did not anticipate missiles would adversely affect the Petitioners’ property or structures. No evidence was offered to show that missiles would adversely affect Petitioners’ property or structures or that the Project would not comply with the applicable FBC structural requirements. Reflective wave energy from the Project will not impact the Petitioners’ property or structures and would not cause a significant adverse impact. There was no evidence of missile damage to Petitioners’ properties from the existing structures even during Hurricane Ivan. To the extent that any threat of missile damage to Petitioners’ structures exists, a more landward location of the Project would increase the threat. Minimization and Mitigation Initially, Applicants proposed a larger and more seaward project. Through negotiations, Applicants agreed to reduce the size of the project and move it more landward. DEP and the Applicants characterize this as minimizing the adverse impacts of the Project. However, "minimization" of this kind can be illusory if an applicant attempts to manipulate it by making a "throw-away" first proposal (not to imply that Applicants manipulated minimization in this case, which cannot be determined from the record). Siting and design criteria have minimized adverse impact. These include construction of the Dwelling: (a) on piles with a design elevation above the storm-surge and storm wave elevations; (b) 306 feet landward of the MHWL and the active beach; (c) behind the new FEMA dune; (d) as far landward as possible for the design; and (e) 18 feet landward of the existing structures on the Property. Placing material excavated for the pool in front of the pool and in the immediate area of construction has minimized the impacts of the pool. No evidence was offered to show that the impacts of the pool have not been minimized. The Permit has been conditioned to require dune enhancement, planting of native, salt-tolerant vegetation, and maintenance of such vegetation as mitigation against adverse impacts associated with the Project. Beach Dune Stability and Natural Recovery The Project is located a sufficient distance landward to permit natural shoreline fluctuations, to preserve and protect beach and dune system stability, and to allow natural recovery to occur following storm-induced erosion. It is located landward of the frontal dunes that existed before Ivan and landward of the frontal dune that now exists (the FEMA dune). The Project will not affect existing shoreline change rates. The Project is landward of where an extensive dune system existed before Ivan and that landward location means it will not interfere with the recovery of those dunes. There is a great expanse of area for dune recovery. It is anticipated that vegetation seaward of the Project will re- emerge by this coming summer. Construction of the Project will not prevent the dune system from recovering and providing protection. Petitioners' primary argument against the Permit, other than its "line of construction" argument, is that dunes will not recover under the footprint of the Dwelling, where they otherwise "want to" and would be expected to recover to some extent, providing some additional dune stability and protection, all other things being equal (i.e., if minimization and mitigation were the same), if the Permit were to be denied and Applicants forced to propose a smaller, more landward project. Cumulative Impacts The Project will not have an unacceptable cumulative impact. No evidence was offered to show that an unacceptable adverse cumulative impact in terms of existing or other proposed projects will result. Positive Benefits of Project The Project will have a net positive benefit on the beach-dune system and adjacent properties and improves existing conditons. Demolition of the two existing structures on the Property will decrease the likelihood of wind and waterborne missiles since the new Dwelling will comply with the structural wind and water load requirements of the FBC. All of the structures to be constructed under the Permit will be landward of the seaward portions of the existing structures. The new Dwelling will be 18 feet landward of the seaward-most point of the existing structures. This landward relocation will allow for more dune recovery seaward of the Project than could occur under existing conditions and mean that the Project will have less impact than the existing structures. Since the beach is an accretional beach and the shoreline has historically advanced seaward, it is expected that the seagrasses and dunes will recover in the area. The area of the Dwelling seaward of the old CCCL is less than the area of the existing structures. The Applicants will implement a dune enhancement plan that includes the placement of 658 cubic yards of sand on the beach and the successful planting of native vegetation on the dune. This dune enhancement plan will benefit the beach dune system, will benefit the new dune, and will increase protection to upland properties.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order issuing CCCL Permit ES-540, as modified by Applicants' Exhibits 9 and 10. DONE AND ENTERED this 9th day of June, 2005, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 2005.
Findings Of Fact Petitioner, Roland Peterson, is the owner of Lots 4, 5 and 6, Block 7, Vilano Beach, in an unincorporated area of St. Johns County, Florida. Vilano Beach lies just eastward of the City of St. Augustine, Florida, and north of St. Augustine Inlet. The three lots are adjacent to each other. By applications dated June 7, 1985 petitioner sought the issuance of three coastal construction control line permits by respondent, Department of Natural Resources, Division of Beaches and Shores (Division), to authorize construction seaward of the coastal construction control line or setback line on Lots 4, 5 and 6. More specifically, petitioner sought approval to construct a beach-side snack bar with associated beach walkover, driveway and attached decks on Lot 4, and single family residences with associated dune walkover; driveway and attached decks on Lots 5 and 6. These applications were assigned Application Numbers SJ 220, SJ 221 and SJ 222 by the Division. They were deemed to be complete on August 6, 1985. After evaluating the three applications, the Division formulated recommendations to deny the requested permits. These recommendations were adopted by the Governor and Cabinet sitting as head of the agency at its November 5, 1985 meeting. Notice of such intended action was previously forwarded to petitioner on October 23, 1985. Said notice prompted the instant proceeding. As grounds for denying the permits the Division concluded that the three projects were located seaward of the seasonal high- water line and were therefore prohibited by a law, the projects lay in an area "highly vulnerable" to a major storm; and the cumulative impact of locating these and other structures further seaward could be expected to adversely impact the beach and dune system of the Vilano Beach area. The parties have stipulated that the Division has properly calculated the seasonal high water line in the questioned area, and that petitioner's three projects lie seaward of that line. The parties have also stipulated that the three projects lie seaward of the frontal dune within the meaning of Subsection 161.053t6)(a)1., Florida Statutes (1985).
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that application numbers SJ 220, SJ 221 and SJ 222 filed by Roland Peterson to construct various structures on Lots 4, 5 and 6, Block 7, Vilano Beach in St. Johns County, Florida, be DENIED. DONE and ORDERED this 14th day of May, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1986.
Conclusions Having considered the record in this cause, and being mindful of Flagler County Resolution No. 84-7, the development order related to Hammock Dunes community, it is concluded: That all statements contained within the petition are found to be true and correct. That the creation of the district is consistent with applicable elements or portions of the Flagler County Comprehensive Plan. That the area of land within the proposed district is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. That the district is the best alternative available for delivering community development services and facilities to the area that will be served by the district. That the community development services and facilities of the district would be compatible with the capacity and uses of existing local and regional community development services and facilities. That the area that will be served by the district is amenable to separate special-district government. DONE and ENTERED this 29th day of May, 1985, at Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1985. COPIES FURNISHED: Wade L. Hopping, Esquire and Richard Brightman, Esquire Post Office Box 6526 Tallahassee, Florida 32314 John T. Herndon Secretary Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol Tallahassee, Florida 32301
The Issue The issue is whether, pursuant to Section 161.053, Florida Statutes, and Rule 62B-33.005, Florida Administrative Code, Petitioners are entitled to a coastal construction control line permit to build a single-family residence in Volusia County with a structural elevation of 19 feet National Geodetic Vertical Datum, not 24 feet National Geodetic Vertical Datum, as required by Respondent.
Findings Of Fact Petitioners own an undeveloped lot located at 4279 South Atlantic Avenue in the Wilbur-by-the-Sea subdivision in unincorporated Volusia County. Mr. Humphries' family has owned the lot for 50 years. The rectangular lot is 210 feet deep and 50 feet wide. The narrower end abuts the Atlantic Ocean on the east and South Atlantic Avenue on the west. The south boundary of Petitioners' lot abuts a developed lot. The house located on this lot has a finished- floor elevation of 26.15 feet National Geodetic Vertical Datum (NGVD). This is consistent with the structural elevations of most of the residences in the immediate vicinity of Petitioners' lot. Even though the seaward extent of Petitioner's proposed structure is roughly in a line with the seaward extent of the nearby homes, the issue in this case is the structural elevation. The north boundary of Petitioners' lot abuts the 50- foot-wide right-of-way of Major Street. In 1984, a wooden walkway was constructed in the southern half of the Major Street right-of-way to allow pedestrians access to the beach. By that time, Major Street was no longer open for vehicular access. However, the construction and maintenance of Major Street may have contributed to the lower elevations on the north boundary of Petitioners' lot, as described below. Nearly all of the lots in the vicinity of Petitioners' lot have been developed; most, if not all, of them contain single-family residences. Petitioners, who are nearing retirement, wish to construct a house that would accommodate them in their later years when they expect their mobility to be reduced. Petitioners' house will sit atop a prominent secondary dune, as do all of the other oceanfront homes in the immediate vicinity. The house will also be confined roughly to the landward half of the lot. These factors mean that the relatively short driveway leading from South Atlantic Avenue to the garage will be relatively steep. Petitioners proposed a reduction in the top of the dune to reduce the steepness of the driveway and the difference in finished-floor elevations between the garage and the house. Generally, the south side of Petitioners' lot is higher than the north side. The seasonal high water line is 8.4 feet NGVD. The lot's east boundary, which is 7-8 feet landward of the seasonal high water line, is about 11.5 feet NGVD. The elevation of the south boundary rises to 28.5 feet NGVD, at a distance slightly east of the most seaward extent of the 10-foot wooden deck that is the most seaward structure proposed by Petitioners. The elevation of the north boundary does not rise much; over the same distance, it reaches only 12 feet NGVD. Proceeding westward, toward South Atlantic Avenue, the south boundary drops from its 28.5-foot elevation. Parallel to the proposed house, the boundary remains at about 25 feet NGVD, except it drops to about 20 feet at the point where the house would meet the garage. For the length of the 26-foot garage, the south boundary drops to 18.5 feet NGVD. For the length of the 30-foot section of driveway between the garage and the west boundary, the south boundary drops from 18 feet NGVD to 17 feet NGVD. The north boundary rises to its highest point, 20.6 feet NGVD, at a point just landward of the point along the boundary closest to the junction between the proposed wood deck and the house. Running parallel to the proposed house, the north boundary drops to about 18 feet NGVD (directly across from a point along the south boundary that reaches about 25 feet NGVD) and then to about 17.5 feet NGVD, at a point just landward of the point closest to the junction of the proposed house and garage. The proposed house would occupy elevations, prior to proposed site preparation, of about 28 feet NGVD at the seaward side, 22-26 feet NGVD at the midpoint, and no more than 21 feet NGVD at the landward side. The proposed deck, house, and all but a sliver of the garage lie seaward of the coastal construction control line. The northeast corner of the proposed house is 72 feet seaward of the coastal construction control line. The dune is largely vegetated. The vegetation includes sea oats, shrubs, and some palm trees, although Brazilian pepper, a nuisance exotic, also vegetates part of the dune. Just seaward of the southeast corner of the proposed deck is a hole, perhaps from past excavation, about ten feet deep and occupying 8-10 percent of the lot. This is the only portion of the lot significantly below-grade. Overall, the dune is functional and healthy. To the extent that it has been disturbed in the past, the dune seems to be recovering vigorously. On or about July 21, 1999, Petitioners applied for a permit to construct a residence seaward of the coastal construction control line. In their application, Petitioners proposed a structural elevation of 19 feet NGVD. The structural elevation, which is about two feet lower than the finished-floor elevation, is the lowest portion of the effectively horizontal structural elements supporting the floors and walls of the structure. Respondent's examination of the application raised concerns about the proposed structural elevation of 19 feet NGVD. The greater elevation of much of the dune under the footprint of the house would necessitate the relocation of dune materials on the lot or removal of dune materials off the lot. However, discussions between Respondent's representative and Mr. Bullard, Petitioners' engineer, failed to identify design modifications upon which both sides could agree. Thus, on June 5, 2000, Respondent issued a Final Order and Notice to Proceed Withheld (Final Order). The Final Order states that Respondent found that Petitioners' application was complete on March 6, 2000. Although the Final Order generally contemplates that construction will eventually proceed, Special Permit Condition 1 prohibits construction until Respondent issued a written notice to proceed. Special Permit Condition 2 warns that Respondent will not issue a notice to proceed until Petitioners submit plans that raise the structural elevation to 24 feet NGVD, relocate all excavated materials seaward of the coastal construction control line (but not more than 120 feet seaward of the line), prohibit net excavation seaward of the coastal construction control line, and specify the planting of all filled or disturbed areas with salt-resistant native vegetation transplanted from onsite areas that will be excavated and other sources, as needed. Special Permit Condition 7 requires Petitioners to obtain the fill material from a source landward of the coastal construction control line. The fill material also must be of a sand that is similar to that onsite in terms of grain size and coloration. However, nothing in the Final Order specifies any requirement to replicate present--or design scientifically verified new--seaward and landward slopes of the portion of the impacted dune. In resisting Respondent's demand to raise the structural elevation, Petitioners have sought to reduce the slope of their driveway, which involves traffic-safety issues in turning on and off busy South Atlantic Avenue, and eliminate the need for an extensive design modification to allow wheelchair- bound persons access to the house from the garage. At the hearing, Petitioners offered mitigation in the form of an artificial dune to be constructed seaward of the residence with excavated materials. However, this proposal would destroy existing vegetation and failed to specify slopes, so that the artificial dune would likely suffer significant and rapid erosion. Petitioners have failed to prove that their proposed construction activities, with a structural elevation of 19 feet NGVD, would not adversely impact the most prominent dune landward of the ocean, so as to reduce the existing ability of this dune to resist erosion and protect upland persons and property.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order dismissing Petitioners' challenge and issuing the Final Order and Notice to Proceed Withheld dated June 5, 2000. DONE AND ENTERED this 7th day of November, 2001, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 2001. COPIES FURNISHED: David P. Struhs, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kathy C. Carter, Agency Clerk Office of General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Robert R. Bullard, P.E. Qualified Representative Absolute Engineering Group Post Office Box 269 Daytona Beach, Florida 32115 Francine M. Ffolkes Senior Assistant General Counsel Timothy E. Dennis Certified Legal Intern Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue Should permit application number WL-237 be approved.
Findings Of Fact (Preliminary Background) Prior to hearing, the parties entered into an agreenent stipulating certain facts as follows: On August 6, 1982, Respondent issued Permit No. WL- 69 to a Mr. Warren L. Lisenbee on behalf of Hadera, Inc. for the construction of a three-story, five-unit multi-family dwelling between approximately 163 feet and 263 feet west of Respondent's reference monument R-09 in western Walton County, Florida. On December 29, 1982, the CCCL (Coastal Construction Control Line) was re-established in Walton County which resulted in a landward relocation of the control line by approximately 82 feet on the subject property. On June 16, 1983, Hadera, Inc. transferred the property to M & T Construction Company, Inc. by Warranty Deed. On October 1, 1983, Section 161.053(4), Florida Statutes, as amended, became effective. Respondent notified Mr. Young, President of M & T Construction Company, Inc., by letter dated July 3, 1984, that Permit No. WL-69 was going to expire on August 6, 1984 and sent Mr. Young a request form for a time extension. On July 16, 1984, Respondent received a time extension request from Mr. Young. No construction activity covered under Permit No. WL-69 had commenced as of July 16, 1984. On July 26, 1984, the Executive Director of Respondent denied the request for time extension. On August 7, 1984, Mr. Young reapplied for the same construction activity on the same property as was previously approved by the Governor and Cabinet, sitting as the head of Respondent, on August 3, 1982 ((Permit No. WL- 69). On August 9, 1984, Mr. Young's Application No. WL- 160 was deemed complete by Respondent's staff. On September 8, 1984, Mr. Young received notice of Respondent's intent to deny the Application No. WL-160, a copy of the draft agenda item and notice of setting the matter on the September 20, 1984 agenda of the Governor and Cabinet and of the Cabinet Aides meeting on September 12, 1984. On September 20, 1984, Respondent received the Petition for Administrative Hearing, pursuant to Section 120.57(1), Florida Statutes, regarding the denial of Application No. WL-160, the matter was removed from the Governor and Cabinet's agenda pending an administrative hearing. On Novenber 15, 1984, Respondent received a Petition for Administrative Hearing, pursuant to Section 120.57(1), Florida Statutes, regarding the denial of the reguest for a one-year time extension of Permit No. WL-69. On September 30, 1985, a stipulation and agreement was signed granting a one-year time extension of Permit No. WL-69 and reducing the project to five (5) units, 80% parallel shore site coverage with a dune management plan to replace vegetation in front of the structure, construct a sand fence, and replace eroded sand in future storms. The two pending administrative hearing cases were dismissed pursuant to the agreement. On March 5, 1987, all items submitted per the stipulation agreement and the placard and approved plans were issued and the time extension for Permit No. WL-69 began running. Notice was given that no extensions of Permit No. WL-69 would be authorized beyond March 5, 1988. On December 10, 1987, Mr. Young reguested by telephone a sixty-day time extension of Permit No. WL-69. By letter dated December 30, 1987, the Director of the Division of Beaches and Shores notified Mr. Young that no further time extensions could be authorized beyond March 5, 1988, pursuant to Section 16B-33.017(5), Florida Administrative Code. On February 8, 1988, Mr. Young telephoned Brett D. Moore, P.E., Engineer Supervisor, Bureau of Coastal Engineering and Regulation, to discuss options available to him at that time. In February, 1988, Mr. Young had pilings installed, pursuant to Permit No. WL-69. On March 5, 1988, Permit No. WL-69 expired. Mr. Young submitted application for Permit No. WL- 237 on August 2, 1988. This permit application was for the construction of a five-unit, three- story townhouse condominium, associated minor structures, and fill. The Executive Director agendaed the application for consideration before the Governor and Cabinet, as head of the Department of Natural Resources, on December 6, 1988. The recommendation was made by Respondent's staff for approval of the permit application. On December 30, 1988, a Final Order was entered denying Permit No. WL- 237. A Petition for Administrative Hearing was timely filed with Respondent on December 27, 1988. The proposed project for Permit No. WL-237 is not expected to interfere with lateral public beach access. The proposed three-story, multi-family dwelling structure in Permit No. WL-237 is designed in accordance with Subsection 16B-33.007(3) and (4), Florida Administrative Code, to resist adequately the natural forces associated with a 100-year interval storm event. The proposed minor structures contained in Permit No. WL-237 are designed in accordance with Subsection l6B- 33.007(5), Florida Administrative Code. The proposed project in and of itself is designed to have no additional adverse impact on adjacent properties. FINDINGS BASED UPON EVIDENCE (General Facts) Petitioner was unable to obtain financing to build the units under the original permit, No. WL-69, and subseguent permit, No. WL-160, due to poor economic conditions in Walton County. (T-16). With no sales or financing, Petitioner could not build the units. (T-18). Economic conditions have since improved in Walton County; and Mr. Young, as President of M & T Construction Company, Inc., has five current contracts for sale in effect on these units and construction financing. The 40-foot pilings were legally installed on site to a depth of 30 feet pursuant to WL-69. The Department of Natural Resources refused to extend WL-69 after installation of the pilings which forced the Petitioner to file a new application, No. WL-237. Application WL-237 is for capping the pilings already installed, constructing a multifamily dwelling on top of the pilings, construction of a retaining wall running east and west against the most northerly of the pilings to retain fill between U.S. Highway 98 and pilings for parking, the construction of dune walkovers, planting of vegetation, and the installation of sand fences as required in a special provision. (T-65). There are no other structures proposed for underneath the structure; the ground is to be left "as is" around and among the pilings. (T-75). (Pedestrian traffic underneath the structure could be precluded by the design" of the structure). (T-105) Construction on the beach has a number of impacts. During actual construction, grasses on the site are trampled; however, that is temporary. The principal direct impacts are the result of installing the pilings, which was legally done. It would not be desirable to remove the pilings at this time. (T-65, 66, and 234). The project is located in Miramar Beach, south Walton County, Florida. (T-15). The project site is located two miles east of the west county line for Walton County and approximately 100 feet west of marker R.9 as shown on Petitioner's Exhibit 8 and Respondent's Exhibit A. There is a very high substantial dune approximately 200 feet from the coast. U.S. Highway 98, the hard-surfaced road running east and west along the coast in both exhibits, is located on the top of this primary dune at the proposed site. U.S. Highway 98 runs along the top of this dune for approximately two miles and then the dune and the coast road diverge and the dune `becomes less continuous. (T-61). The CCCL is located approximately along the right-of-way of U.S. Highway 98. This project cannot be located more landward and is located waterward of the CCCL because the proposed buildings are within one or two feet of the property line, which is the southern edge of the right-of-way of U.S. Highway 98. (T-77, see Petitioner's Exhibit 8). The elevation of the road in the vicinity of the site is well in excess of 20 feet. The elevation of the land behind the road is similar to the elevation of the road. Therefore, the dune line upon which the road is built is the major rise in the topography of the beach area. (T-61). There is a frontal dune in the area of the proposed site located closer to the water. (T-62). This frontal dune has an elevation of 8-12 feet, is vegetated, and is subject to the effects of storm and weather conditions more frequently that the primary dune. (T-62). This frontal dune offers protection to the primary dune in lesser storms. The property located to the east of the site of this application is a six-unit residential structure built in 1980 or 1981, almost identical to the proposed structure at issue in this permit. (T-29, 54). The adjacent property on the west is a 100-foot lot owned by Sea Cabins Condominium Association with a gazebo and beach access located on it. (T-29-30). The gazebo is owned by Sea Cabins Condominium Association, which is located north of the site across U.S. Highway 98 from the gazebo. The use of the land upon which the gazebo is constructed is subject to the restrictions of the condominium association, and nothing can be built on it without a vote of all members of the Sea Cabins Condominium Association. There are approximately 40 units at Sea Cabins Condominium Association. (T-30-31, Petitioner's Exhibits 5 and 7). To the west of the gazebo on the beach south of U.S. Highway 98 is the property of the high-rise condominium located north of U.S. Highway 98 and just west of Sea Cabins Condominium Association. This condominium, together with its elevated pedestrian overpass of U.S. Highway 98, can be seen with the other referenced structures in Respondent's Exhibit D. The construction does not further jeopardize adjacent structures. (T-60). (Stipulation, p. 4-5). Mr. Young has received the permits necessary for construction from the Florida Department of Transportation and Walton County for the construction involved in WL-237. (T-18). (Special Conditions for WL-237) The Respondent wrote and initiated the following special conditions on application WL-237, to which Petitioner agreed. (Joint Exhibit 5, T-21-25, and T-219). The employment and maintenance of sand fencing capable of stabilizing and retaining the volume of sediment residing in the dune face at the time of construction. The volume of sediments and location of the sand fencing will be referenced on an approved site plan incorporated as a part of this permit. The implementation of a dune-stabilizing vegetation program seaward of the project as designated on the approved site plan subsequent to construction. The vegetation shall be planted throughout the designated area(s) in staggered rows a maximum distance of 18 inches apart, prior to expiration of the permit. The permittee shall irrigate and apply fertilizer as appropriate for the particular species planted, at least until the vegetation is established (usually approximately two years after planting). At least a 75% survival rate of the vegetation shall be insured and replanting shall be conducted until' a 75% overall survival rate is attained, and until any sizable barren portions of the area(s) are covered. In the event of natural storm induced erosion of sediment existing within the dune face, below th proposed structure, or within the dune maintenance area, compatible materials shall be deposited and stabilized as referenced above to restore the area to its prestorm condition. Petitioner also agreed to design and build a dune walkover where the people from the units could walk over the dune to access the beach. (T-25-26). Petitioner also agreed to fill in and extend the frontal dune across the property to one side of the proposed structure. (T-47). If the material is of good quality and replacement is carried out in a careful manner, the direct impacts of artificial fill are minor. (Deposition of Dr. Dean, March 15, 1990, p. 6) (Grounds for Denial) The permit was denied by the Department of Natural Resources because of the direct impacts and cumulative impacts of this proposed construction on the coastal dune system on the site of the proposed construction. (T-60). (Joint Exhibit 4). There are two types of direct impacts; those impacts occurring during normal conditions and those occurring during severe storms. (T- 66) (Dunes) For the western 10,000 feet of Walton County, to include the proposed site, the beach configuration is marked by high sand dunes over 20 feet high, approximately 150-200 feet from the water line. This primary dune is protected in many areas by one or more lower frontal dunes. These frontal dunes provide protection to the primary dunes by taking the energy of small storms. The primary purpose of dunes is to provide a reservoir of sand which can be transported offshore to form offshore sand bars which serve as natural breakwaters to slow and dissipate the energy of the waves. If the sand is not present to be transported offshore, then the erosion of the dune profile is much greater. (T-246). If the storm is large enough and lasts long enough, the shore will reach a state of equilibrium. However, this would probably take a storm of several weeks duration. During storms, elevated water levels and elevated wave height cause erosion of the normal beach profile. Sand is transported offshore and deposited in a mound called the longshore bar. The longshore bar acts as an offshore bar which breaks the waves, thereby decreasing the wave energy and their erosional process. (T-244). After the storm, the offshore bars formed from the eroded sand are uncovered during low tide and the wind blows the sand back onshore, rebuilding the dunes. A beach profile is a cross-section of the topography of the coast line, both underwater and above water. The frontal dune is a formation that tends to develop along that part of the coast. (T-279,280) There is a frontal dune on the property at an elevation of approximately 8-12 feet between markers R-8 and R-9, in the vicinity in which the proposed projected is located. (See Petitioner's Composite Exhibit 9 and T-278). The frontal dune is patchy in areas, but it does exist; and the area is characterized by the tendency to develop frontal dunes, as shown in the Walton County profiles. (T-283, See Petitioner's Composite Exhibit 9). There is a frontal dune ridge appearing on Walton County profiles R-7 and R-8, near Petitioner's property. (T-279). The profile of the coast at the proposed site shows that the land rises from the water's edge to the frontal dune which has an elevation of 8-12 feet. It then drops down slightly and abruptly rises into a very high primary dune with an elevation in excess of 22 feet. U.S. Highway 98 is constructed along this primary dune line at the area where the subject site is located. The frontal dune provides protection for the primary dune for all but the most severe storms. It is a more active portion of the dune system than the primary dune and, in fact, was destroyed during the last hurricane and has re- established itself along most of that area. (See Petitioner's Composite Exhibit 9, Deposition of Tackney, `March 23, 1990, p. 5). In a 100-year storm, all the experts agreed that the frontal dune would be washed away and significant erosion would occur to the primary dune. The agency's expert, Dr. Robert Dean, prepared an exhibit (Respondent's Exhibit D) which showed the extent of this erosion based upon his assumptions concerning the impact of pre-storm erosion. While the Petitioner's expert did not agree with the extent of the erosion depicted in, Respondent's Exhibit D, he concurred that a major storm would erode the dune enough to endanger or damage U.S. Highway 98. The Petitioner's expert indicated that this erosion would occur without regard to the proposed project. Vegetation plays a part in the dune generation process by trapping the windblown sand and as the vegetation grows, stabilizing the dune by the root matrix left in the dune. The beach dune system can be impacted by the loss of vegetation because the absence of vegetation leaves the sand susceptible to being transported further landward. When this occurs, the sand is no longer present as a reservoir which can be transported offshore in a storm. (T-245- 46). This results in greater erosion to the coast. (Direct Impacts - Normal Conditions) The agency's expert pointed out two adverse direct impacts which occurred during normal conditions: destruction of vegetation and accelerated windborne transportation of the sand inland. The vegetation is killed by trampling during construction and by cutting off sunlight to the existing vegetation by construction of the building. The construction, according to the agency's expert, raises the velocity of the wind and accelerates the rate and quantity of sand blown inland from the primary dune. (T-135, 245-47, 268). Revegetation, a special condition of WL-237, would replace vegetation killed by the trampling during construction. However, revegetation would not solve the problem of the low- light conditions created by the building's shadow. However, this problem would be limited to an area under the structure smaller than the footprint of the building because direct light penetrates under the house as the sun moves across the southern sky during the day. There are no structures to prevent sunlight from penetrating to the significant slope under the structure which faces due south. The assessment of the agency's expert also does not take into account vegetation which prefers low- light conditions. The Petitioner's expert agreed that the construction of the building will have an adverse effect upon some of the vegetation in the area. However, that impact would be lessened by revegetation of the dunes, construction of walkover structures, and sand fencing. Sand fencing, made of wire with lath between them, will be placed underneath the pilings, as required by the special conditions in the permit. (T-74-75) (Joint Exhibit 4, special conditions) . The Respondent promotes sand fence placement as sand fences have been observed to be effective in intercepting windblown sand and in assisting in the process of dune formation. (T-211). The larger the frontal dune is, the more protection it offers to the primary dune. (T-188-89; Dean at 4-5). There is conflict in the testimony whether the sand would be trapped under the house by the sand fences. The agency's expert opined that high wind velocities would scour sand from underneath the structure during normal conditions. The Petitioner's expert testified that sand fences and walkovers would prevent or reduce radically the loss of sand from under the structure preventing the Department's predicted erosion during normal conditions. Nothing in the permit application or additional special conditions would prevent traffic or the placement of storage items beneath the structure. (J2-May 6, 1986 letter to Tom Young; J4). No provision is made in the permit for replacement of sand due to erosion losses during normal conditions. (J4; T- 189-90, 285; Dean at 6). The testimony of Petitioner's expert is deemed the more credible. The erosion of sand from underneath the structure will be halted by the use of sand fences; the damage to dunes and dune vegetation will be minimized by walkovers; and the damage caused by construction will be repaired through revegetation and fill. The sand will remain under the building, even if the vegetation dies, retained there by the sand fencing and surviving vegetation. The impact of the proposed project on windblown scour and vegetation during normal conditions is found to be negligible. (Rainwater Erosion) In order to meet the county's stormwater requirements, the surface of the parking area is to be graded and runoff directed away from the highway and the side of the building. The runoff is from the highway and the building and was not created solely by the proposed structure. (T-277). Pictures of conditions at the adjoining structure were introduced to show the erosion which can be caused by storm water runoff; however, the conditions depicted reflected a improperly designed and constructed drain system which had not been maintained. Storm water runoff problems can be avoided or corrected by handling the problem appropriately in the first instance. (T-277). (100-year storm impacts) A 100-year storm; i.e., a storm with conditions which would occur once in a 100-year period, would impact the entire area. The proposed structure would be built to code standards, and it is stipulated that a structure built to code standards is built to survive the hypothetical 10 0-year storm without serious damage. The damage done by a storm is dependent upon the flood elevation of tides generated during the storm and the duration of the storm. Fortunately, the factors which make storms severe are the factors which make storms short. During a 100-year storm, water will not overtop the road on the primary dune. A 100-year storm would cause major erosion to include complete loss of the frontal dune and erosion to the primary dune. In the event of a 100-year storm, there will be damage to the primary dune regardless of the pilings or the proposed structure. (T-210) (T-87). The northerly extent of the erosion is alleged to be increased by the pilings, according to the Respondent's expert. 61. Maximum tidal elevation is predicted to be 11-11.5 feet during a 100-year storm. Water would be up under the structure and would wash around the pilings, which is contemplated in the design of the structure. There will be some localized water-induced scour around the pilings. Scour effect around each piling is localized to this particular site and would not affect the situation on either side of the building. (T- 73,88). However, the deeper the erosion, the more northerly its intrusion. There is a conflict about the factors effecting this scour and the extent of the northerly erosion. Respondent's Exhibit D purports to graphically present the erosion caused by the proposed project by presenting the erosion caused by a 10 0-year storm using the topography of the site next door. The Respondent's expert based his projection upon three separate conditions impacting inland erosion: conditions prior to the installation of the pilings; conditions with pilings, and conditions with the frangible retaining wall constructed as indicated. The exhibit compares pre-storm profiles with post-storm profiles under the three conditions described without considering the mitigating effect of any of the special conditions. Respondent's Exhibit D uses an elevation significantly lower than the actual existing profile as a pre-storm profile with piles installed to allow for the wind scour under normal conditions. This red, dotted line was labeled at a conference with counsel for the parties as "Post Construction, Pre-Storm." The Respondent's expert did not explain how he quantified his assumptions about wind scour under normal conditions. The Respondent's expert also deducted two feet from the "Post Construction, Pre-Storm" line to adjust for water- induced scour, which he had estimated as two feet. This solid red line was labeled "Scour Adjusted Profile." Using these assumptions, the computer model plotted the northward limits of erosion for the pre-construction assumptions and post- construction, pre-storm, and scour-adjusted assumptions. The first of these two dotted lines was labeled "Pre-construction" and colored green, and the second was labeled "Post Construction w/2 ft Scour" and colored red. The Respondent's expert then computed a third northward erosion limit based upon the acceleration of erosion due to the frangible retaining wall installed on the northern pilings to retain fill used to create a parking area between the structure and U.S. Highway 98. This is the black dotted line labeled "W/Wall." The experts disagreed about the impact of the frangible retaining wall. The Respondent's expert opined that the wall would accelerate the erosion. (Sea Respondent's Exhibits G and D). The Petitioner's witness opined that the wall would collapse prior to any adverse or accelerated impact on erosion. (T-94,95, and 282). The base of the frangible wall is about 11 feet above the water line, or about the height of the highest projected flood tide. The wave action along the shore as the water rose would undercut the bottom of the wall in a severe storm and it would disintegrate. Petitioner's evidence is more credible on this issue, and the projected erosion as a result of wash around the wall (black dotted line labeled "W/Wall") is not considered as the most credible evidence. Having found that the agency's assumptions regarding windblown scour and the acceleration of erosion due to the retaining wall are not well founded, the projections based upon these assumptions are disregarded also. The "Post Construction, Pre-Storm Profile", the "Scour Adjusted Profile", and erosion acceleration model are rejected, together with their resulting northerly erosion profiles, "Post Construction w/2 Ft Scour" and "W/Wall." When windblown scour is disregarded, the post construction, pre-storm profile would be the same as the pre- construction, pre-storm profile. Adjustment for water-induced scour would result in a line two feet below the pre-storm, pre- construction profile approximately one-third the distance between the green solid line and the red dotted line. The amount of northerly erosion is apparently proportional to the elevation of the beach; therefore, the northerly limit of' inland erosion attributable to the pilings would be approximately one-quarter the distance from the "pre-construction" limit to the "post construction w/2 ft scour" or slightly more than one foot. based upon scaler measurement of Exhibit D. The granting of the application to construct a building on the existing legally installed piling will have no appreciable impact on the dune system. (Impact on Dune Recovery) When a 100-year storm event occurs, the dune will have difficulty reestablishing because the natural mechanisms for regenerating the dunes are reduced. (T-285). If the dune system is damaged by a storm, the property owners are required to restore the beach to its pre-storm condition. (T-69 and T-73) The special conditions provide that the property owner must buy sand, haul it in and restore the dune system in accordance with the Respondent's requirements. (T-69 and Joint Exhibit 4). 285). Therefore, the long-term affects of this construction would not be significant. (T-70). (Cumulative Impact) The Respondent originally recommended approval of Permit No. WL-237. Mr. Kirby Green, Division Director, Division of Beaches and Shores, overturned the staff's recommendation of denial and approved the permit. (T-277). The Governor and Cabinet, sitting as the head of the Department of Natural Resources, denied the permit. (Joint Exhibit 3). The Governor and Cabinet were apparently concerned with the cumulative impact of continued development. (See transcript of Cabinet Meeting). Mr. Green testified that he would still recommend that the permit be issued based upon the equities. (T-230). "Cumulative impact" is statutory language adopted in the Florida Statutes in 1983. (Stipulation). The rules adopted by the agency provide, "The Department may not authorize any construction of activity whose cumulative impact will threaten the beach or dune system or its recovery potential following a major storm event. An exception to this policy may be made with regard to those activities undertaken pursuant to Subsections 16B- 33.005(3)(d) and 16B-33.006(5)(c) , Florida Administrative Code." Section 16B-33.005(3)(d), supra, permits construction of shore protection structures "....which close the gap between the adjoining rigid coastal or shore protection structures to the limit of physical impact to the property from those structures". Section 16B-33.006(2), supra, addresses permits issued by the Governor and Cabinet "when they clearly justify a permit." The criteria relating to "cumulative impact", as applied by the agency, preclude the granting of the "first" permit, if, in the opinion of the Department, the Governor and the Cabinet, additional similar permits would threaten the beach or dune system or its recovery potential following a major storm event. The criteria relating to cumulative impacts have not been quantitatively analyzed and codified by the Respondent. Except as stated above, "cumulative impact" is not further defined by the statutes or rules, and the methodology of. assessing cumulative impact is not set forth. The Respondent has funded a study to quantify cumulative impact; however, at this point, it-has not published its results, and this project will not be completed in the next 30 months. (T-2311-232) There is no guidance to applicants about how to address cumulative impacts or what sphere of influence to address. (T-115). Since there are no quantifiable definitions of cumulative impact, the agency's witnesses could not say how large a segment of beach they would include in their assessment. (T- 271). Staff analysis of cumulative impacts was termed an intuitive type of analysis. (T-23). In the absence of defining the segment of beach which should be considered, it is concluded that permit applications are subjectively evaluated. (T-82). (Beach Segment for Cumulative Analysis) Respondent's Exhibit A is an aerial photograph of the location of the proposed construction. North is to the top of the picture, and east is to the right of the picture. On this photograph, the proposed site is marked with a "D" and the proposed structure and those previously constructed to the east of the proposed structure are shown in red. The gazebo is shown immediately to the west of the proposed structure. The high-rise condominium is not shown but would be located generally to the west of the Sea Cabins Condominiums north of U.S. Highway 98, which are shown. The high-rise condominium has a pedestrian overpass over U.S. Highway 98 which services the condominium's beach immediately west of the gazebo shown in the picture south of U.S. Highway 98. The beach, waterline, and U.S. Highway 98 in the vicinity of the proposed construction is clearly shown. The depth of the property between U.S. Highway 98 and the water narrows to the west of the proposed project, gazebo, and condominium beach to its narrowest point due mouth of the divided paved road which intersects U.S. Highway 98 from a northerly direction. From this point, the property between the road and water begins to widen; and a single-family residence is shown slightly to the west and south of the intersection referenced above. A picture of this residence was introduced as Respondent's Exhibit B4. The beach shown on this aerial photograph is the relevant beach segment because it shows the narrowing and widening of the beach in the area of concern. The agency's witness indicated that the depth of the beach area is the critical determinant. The existing single-family residence is the same distance west of the narrowest point that the proposed project is to the east. The gazebo and condominium beaches lie between the proposed project and the narrowest point. Development of the property between the proposed project and the narrowest point is very highly unlikely because this area is the bathing beach for two multi- unit condominium projects. All of the property east of the narrowest point, except the proposed site, has already been developed as multi- family dwelling sites or multi-unit condominium bathing beaches. To the west of the narrowest point, a single-family residence has already been constructed. (T-83). (Parallel Coverage) The parties settled their prior controversy by entering in to a Stipulation and Agreement whereby the Respondent agreed to a one-year extension of the permit If Petitioner agreed to reduce from 90% to 80% shore parallel site coverage, maintain a dune management plan, construct a sand fence, and replace eroded sand in future storms. (Joint Stipulation at 3). Analysis of shore parallel coverage for sites by the agency is an attempt to limit widths of structures and allows dune preservation between structures. (T-142).
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the application be approved with the added special conditions. DONE AND ENTERED this 6 day of June, 1990, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6 day of June, 1990.
The Issue The issue is whether Respondent Negele is entitled to a coastal construction control line permit to construct a single- family residence seaward of the coastal construction control line on Anna Maria Island.
Findings Of Fact Respondent Susan Negele (Applicant) owns Lot 10, Block 35, of the First Addition to Anna Maria Beach. Petitioner owns the legal interest in Lots 11 and 12 in the same block. Lot 11 is adjacent to, and landward of, Lot 10, and Lot 12 is adjacent to, and landward of, Lot 11. As platted in 1912, Lot 10 was separated from the Gulf by 360 feet, consisting, from landward to seaward, of two 50-foot lots, an unnamed 10-foot alley, a 100-foot lot, a 50-foot-wide road known as Gulf Boulevard, and about 100 feet of beach (although this feature does not contain a stated distance and the plat map does not indicate the location of the mean or seasonal high water line). According to the plat, running perpendicular to Gulf Boulevard (and the shoreline) are Elm Avenue and another unnamed 10-foot alley. Elm Avenue, which is 50-feet wide, runs along the northwest property line of Lot 10, and the unnamed alley runs along the southeast property line of Lot 10. Today, Lot 10 is the first platted feature landward of the seasonal high water line of the Gulf of Mexico. The record does not reveal whether the platted features seaward of Lot 10 were submerged at the time of the original subdivision or, if not, the process or processes that submerged these three lots, alley, road, and beach. Notwithstanding the clear evidence of the plat map, there is insufficient record evidence on which to base a finding that the mean or seasonal high water line has migrated landward a distance of 360 feet in 88 years. The record is contradictory on the issue of the stability of the beach seaward of Lot 10. On the one hand, as noted below, two rock groins of unknown age on either side of Lot 10 suggest an effort to deter offshore erosion, but the presence of these groins does not support an inference of a diminishing beach. The beach seaward of Lot 10 is included in the Comprehensive Beach Management Plan, which is reserved for beaches that are subject to erosion, but the record does not develop this point adequately. On the other hand, also as noted below, the anecdotal evidence suggests that the beach seaward of Lot 10 has been stable, at least for the past two or three decades. A recent survey, described below, suggests rapid growth in the beach and dune over the past 16 months. Even stronger evidence of the stability of the beach seaward of Lot 10 is its exclusion from the 30-year erosion projection. The record unfortunately does not disclose the proximity of this line to Lot 10, which, if in close proximity, would be important evidence of the condition of a beach and frontal dune system. In sum, the relative stability of the beach in the vicinity of Lot 10 is unclear. However, the exclusion of Lot 10 from the 30-year erosion projection and the anecdotal evidence of stability slightly outweigh the contrary evidence of instability. Applicant's family has owned Lot 10 for 50 years. Originally, they occupied two buildings on Lot 10 that had once served as Coast Guard barracks. At one point, Applicant's father barged the houses up the Manatee River to his father's farm in Palmetto. The record does not reveal whether another building was ever constructed on Lot 10. From an engineering standpoint, Lot 10 is a buildable lot. Applicant seeks the necessary permits to allow residential construction, so as to raise the market value of Lot 10 prior to its sale in order to liquidate this asset following the death of her surviving parent. By application filed with Respondent Department of Environmental Protection (DEP) on June 16, 1997, Applicant requested a coastal construction control line (CCCL) permit to construct a single-family residence on Lot 10. On June 30, 1999, DEP issued a Final Order tentatively granting the permit, but authorizing the construction of a structure with a footprint of only 352 square feet. Finding the allowable footprint insufficient, Applicant challenged the tentative agency action in DOAH Case No. 99-3913. Finding even a 352-square-foot footprint objectionable, Petitioner also challenged the tentative agency action in DOAH Case No. 99-3613. The Administrative Law Judge consolidated the two cases. Agency action in cases of this type is necessarily tentative because it is subject to administrative challenge, which, once resolved, allows final agency action to take place. However, the tentative agency action in this case is tentative in another important respect. DEP has approached the permitting decision in this case through a bifurcated process. DEP has issued a Final Order approving the proposed activity in concept, but has withheld issuing a Notice to Proceed, which is necessary before construction may commence. DEP has withheld issuing the Notice to Proceed until it receives more detailed plans for grading and revegetating the dune and it determines that these plans adequately address the protection of the beach and dune system. As noted below, the bifurcated permitting process defers DEP's examination of detailed grading and revegetation plans until after its issuance of the Final Order. DEP's expert testified that DEP provides a point of entry to challenge final orders, but not notices to proceed. (Tr., p. 174.) The expert testified that DEP would provide another point of entry concerning the proposed activity, but only if DEP were to issue another final order, such as for a "major modification" of the project (Tr., p. 174). But nothing in the record suggests that DEP will be issuing another final order following it's receipt of the more detailed grading and revegetation plans, whose approval by DEP is not subject to administrative challenge (absent successful judicial action to force DEP to provide another point of entry). (The record does not reveal whether DEP would provide Applicant with another point of entry if DEP were to disapprove the more detailed plans and decline to issue the Notice to Proceed.) The absence of an agency-recognized point of entry to challenge the detailed plans means that the analysis necessary to make the determinations required by law concerning the impacts of the proposed activities must be limited to the Permit, as it presently exists, and these determinations may not rely upon additional protections that may be supplied by more detailed plans that are not yet in existence. DEP and Applicant settled DOAH Case No. 99-3913 shortly prior to the final hearing. The settlement stipulation incorporates a new site plan showing the proposed residence moved landward so that it is seven feet landward of the vegetation line, but setback only three feet from the northeast property line (adjoining Lot 11) and five feet from the southeast property line (adjoining the alley). DEP approved the settlement on or about March 17, 2000. By letter dated March 22, 2000, DEP's counsel advised Applicant's counsel that DEP would announce at the final hearing that "it intends to issue the [Permit] . . . in accordance with the agreed location in [the revised site plan] and all other applicable conditions of the June 29, 1999, final order and June 30, 1999, letter from [DEP] to Charles Rose." The CCCL permit is dated June 29, 1999, and expires on June 29, 2002. References to the "Permit" shall include the subsequent modifications that resulted in the settlement of DOAH Case No. 99-3913 and the modifications described below. Petitioner objected to all evidence and any express or implied amendment of the pleadings at the final hearing to encompass subsequent Permit modifications, but the Administrative Law Judge overruled these objections. The Permit authorizes Respondent to conduct activities in a location that is seaward of the CCCL, but landward of the 30-year erosion projection and the existing line of construction established by major structures in the immediate area. According to the survey dated October 15, 1998, and architect's plans dated November 12, 1998, the residence to be constructed would be an elevated two-story frame structure, over a concrete pad, with a footprint of 952 square feet. The proposed structure would be similar in size and character to other residences in the area. A registered architect has signed and sealed all relevant construction plans. For the purpose of this recommended order, the seaward side of Lot 10 is its 110-foot side facing the southwest. This southwest property line runs from the west corner to the south corner of Lot 10. The north and east corners mark the 110-foot side of Lot 10 that abuts Lot 11; this is the northeast property line. As already noted, the two 50-foot sides of Lot 10 abut Elm Avenue and the unnamed 10-foot alley. As it exists in the ground, Elm Avenue is a strip of pavement 17 feet wide located in the middle of the 50-foot wide platted right-of-way. At present, the paved portion of Elm Avenue does not extend seaward of the midpoint of Lot 11. Applicant proposes the construction of a shell drive between the Elm Avenue right-of-way and the north corner of Lot 10, but this proposed activity is not the subject of the present case. The road right-of-way immediately adjacent to Lot 10 was occupied by a 60-foot wooden access walkway extending from the end of the road seaward, between the rock groin and the northwest line of Lot 10. However, this walkway was removed in the past couple of years. At present, the rock groin parallel to the northwest line of Lot 10 occupies the center of the road right-of-way, extending from Lot 10's midpoint, which is landward of the seasonal high water line, to a point seaward of mean sea level. Another rock groin runs from the unnamed alley along the southeast line of Lot 10, also from a point just landward of the seasonal high water line, and extends seaward of mean sea level. Running parallel to the two 50-foot lot lines of Lot 10 and perpendicular to the shoreline, these two rock groins may offer some protection from erosion by affecting sand traveling offshore, but do not otherwise directly offer any protection to the beach and dune system. As established by Applicant, landward from the Gulf, relevant natural features are located as follows. Mean sea level, which is 0.00 feet National Geodetic Vertical Datum (NGVD), is over 50 feet seaward of the west corner of Lot 10 and over 100 feet seaward of the south corner of Lot 10. Mean high water, which is 1.2 feet NGVD, is 35 feet seaward of the west corner of Lot 10 and about 75 feet seaward the south corner of Lot 10. Seasonal high water, which is 3.63 feet NGVD, is about 10 feet landward of the west corner of Lot 10 and about 25 feet seaward of the south corner of Lot 10. About 15-20 square feet of the relatively low west side of Lot 10 is submerged at seasonal high water. In two respects, Petitioner's survey, which was dated March 25, 2000, establishes that, at least for the past 16 months, the beach and dune system is flourishing, not eroding. First, mean high water is now farther from Lot 10 than it was in late 1998. In the intervening 16 months, the mean high water line has migrated to a point 77 feet seaward of the west corner of Lot 10--a distance of 37 feet in less than one and one- half years. During the same period, the mean high water line has migrated from 75 feet to 102 feet--a distance of 27 feet--seaward of the south corner of Lot 10. Second, the newer survey reveals that the seven-foot contour, which is shown on Applicant's survey as a small area at the midpoint of the southeast lot line, now extends across the southeastern two-thirds of the central portion of the lot. It is difficult to estimate from the surveys, but the area of at least seven-foot elevation appears to be six or seven times larger than it was 16 months ago, although a very small area of eight-foot elevation shown on Applicant's survey appears to have disappeared. Both surveys show that the six-foot contour line roughly bisects Lot 10 diagonally from the north to the south corners. Evidence of beach stability supplied from the March 2000 survey is reinforced by anecdotal testimony that the beach at this location has been stable for at least 20 years. In general, the beach at this location is not as dynamic as beaches found elsewhere in Florida. The CCCL is about 259 feet landward of the north corner of Lot 10 and about 222 feet landward of the east corner of Lot The CCCL is landward of Petitioner's Lots 11 and 12, as well as the next two 50-foot wide lots and nearly the entirety of Gulf Drive (Snapper Street on the plat) adjoining this block. According to Applicant's survey, the seaward toe of the frontal dune runs roughly along the seaward six-foot contour, perhaps 10 feet seaward of this contour at the west corner and a perhaps five feet landward of this contour at the south corner. The vegetation line runs 3-5 feet landward of the surveyed seaward toe of the dune. According to Applicant's survey, the frontal dune continues over the landward half of Lot 10, excluding only a 10-square-foot area at the east corner and extending well across the southeastern line of Lot 11, so as to capture about one-fifth of that lot. However, the surveys do not support an independent determination of the toes of the frontal dune or, thus, its width. DEP's expert testified that the landward toe of the dune is probably landward of the surveyed location. Also, the scale of the surveys did not facilitate analysis of subtle changes in slope, which would be indicative of the toes of a low frontal dune, such as is involved in this case. DEP's expert opined that a maximum elevation of seven or eight feet NGVD meant, at this general location, that the toes would probably be at the five- foot contours. If so, the seaward toe would be about 10-15 feet seaward of its surveyed location, and the landward toe would be at an undetermined location landward of Lot 10. Several dynamic processes underlie the beach and frontal dune system. Perhaps most obviously, plants rooted in a dune capture sand and, thus, add to the size of a dune. The absence of such plants facilitates a reduction in dune size. The stability of a dune is also affected by the slopes of its seaward and landward sides and the size of the grains of sand constituting the dune. When restoring a dune, adherence to historic slopes and elevations enhances the possibility of a successful dune restoration. Deviation from these slopes and elevations raises the risk of failure. The same is true regarding the size and characteristics of the grains of sand used to restore a dune. Another factor important in dune stability, as well as upland protection, is the continuity of the dune. A shorter dune, in terms of its length running parallel to the shoreline, is less stable and obviously offers less landward protection than a longer dune. As originally proposed, Respondent's home would occupy the east corner of Lot 10. The southwest side of the residence (facing the Gulf) would have been about one foot seaward of the vegetation line and only one to two feet landward of the surveyed seaward toe of the frontal dune. The landward side of the residence would have been 10 feet seaward of the northeast side of Lot 10. The proposed home would have been setback 10 feet from the northeast and southeast property lines. Shortly prior to the commencement of the hearing, Applicant modified the proposed plans, and DEP modified the Permit. These changes would relocate the proposed residence so that it was seven feet landward of the vegetation line, but setback only three feet from the northeast line and five feet from the southeast line. Despite its relocation landward from its original proposed location, the entire residence would occupy the frontal dune. More specifically, the residence would sit on the seaward side of the frontal dune. The Permit imposes a number of special conditions upon the construction of Respondent's residence. Consistent with DEP's bifurcation of the permitting process in this case, these special conditions prohibit the commencement of construction until Respondent submits plans and specifications "includ[ing] or reflect[ing] the following:" 1.1 A revised site plan including the distances relative to coastal construction control line to all the authorized structures with dimensions. The revised site plan shall depict the dwelling relocated to within 3 feet of the upland lot line and not exceeding a distance of 244 feet seaward. * * * 1.5 A revised grading plan depicting the restored dune extending across the entire parcel with a minimum crest elevation of +7.0 feet (NGVD). * * * The fill material shall be obtained from a source landward of the control line and shall consist of sand which is similar to that already on the site in both grain size and coloration. This fill material shall be free of construction debris, rocks, or other foreign matter. A sample of the sand shall be provided to the staff representative during the preconstruction conference. All permanent exterior lighting shall be installed and maintained as depicted in approved lighting schematic. No additional exterior lighting is authorized. CAVEAT: Due to potential adverse impacts to the beach and dune system that may result from additional development on the property, the shore-parallel and seaward extent of the permitted structures shall not be increased, nor will any additional major structures be permitted which would exceed the limits established by the permitted construction seaward of the coastal construction control line. The present proposed location of the residence is not landward of a line running 244 feet seaward of the CCCL. Roughly one-third of the proposed residence would be seaward of this line, which is set forth in the Permit. Addressing the obvious conflict between the restriction contained in Permit Paragraph 1.1 prohibiting any structure seaward of a point 244 feet seaward of the CCCL and its approval of the new location for the residence, DEP announced at the hearing a new Permit Paragraph 1.1, which reads: The revised site plan shall depict the dwelling relocated within three feet of the upland lot line and not exceeding a distance of 250 feet seaward of the CCCL on the southwest corner and 255 feet seaward of the CCCL on the northwest corner. (Tr., pp. 119-20.) The revised site plan clarifies that the reference to "three feet" means the three-foot setback on the northeast lot line. The references to the southwest and northwest corners are, respectively, to the southernmost corner, which, when used with respect to Lot 10 in this recommended order, is described as the south corner, and the westernmost corner, which, when used with respect to Lot 10 in this recommended order, is described as the west corner. (For ease of reference at the hearing, counsel, the witnesses, and Administrative Law Judge reoriented Lot 10 by referring to the southwest lot line as the west lot line and treating the Gulf, which is southwest of Lot 10, as though it were due west of Lot 10.) At present, Applicant has submitted no grading plans, which would address the seaward toe of the frontal dune after construction. The landward toe is not on Applicant's property, so Applicant will not be able to change the slope of the landward side of the dune by adding sand to the portion of this dune not contained within Lot 10. As identified to this point, the Permit's requirements for dune restoration are sketchy, reliant upon more detailed grading plans that are not yet in existence. Permit Paragraph 5 adequately specifies the grain size. However, the Permit fails to specify the slopes, leaving this crucial element of the dune to the more detailed grading plans. Under the Permit, Applicant would be required to supply a specified volume of sand to the site. This volume was calculated to be sufficient, based on Applicant's survey, to raise the portion of the dune northwest of the seven-foot contour to an elevation of seven feet NGVD. However, if Petitioner's survey is correct, much less sand will be needed to raise the elevation to seven feet NGVD, so the "excess" sand will widen the dune. This recommended order has credited both surveys, so Applicant's survey provides the relevant details except for the more recent information supplied by Petitioner's survey concerning the locations of the mean high water line and the seven-foot contour. The widening of the dune authorized by the Final Order necessarily changes the dune's profile by extending the seaward toe closer to the shoreline and probably changes the slope of the seaward toe of the dune. Additionally, raising the elevation of the dune in the northeastern portion of Lot 10 will dramatically change its landward profile, given the fact that Applicant cannot add sand to the large portion of the dune landward of Lot 10. The effects of these alterations of the dune profile are entirely unknown to Applicant and DEP. Failing to perform the preliminary tasks of locating the existing dimensions of the dune--in terms of its width (perpendicular to the shoreline) and its length (parallel to the shoreline)-- Applicant and DEP lacked the baseline data upon which they could then analyze the construction and post-construction effects of placing Applicant's residence atop this dune. The present stability of the beach and dune system at Lot 10 does not dispense with the necessity of such analysis in making the determinations required by the relevant law. Additionally, the Permit fails to address the revegetation of the dune, again leaving this issue to more detailed plans not yet in existence. Specifically, Applicant has submitted no plans establishing a replanting scheme with specified species at specified distances, criteria by which to measure the success of the revegetation process (e.g., X percent coverage after one year), and a monitoring and enforcement program. Lastly, although the City of Anna Maria issued a letter approving of the proposed plans when Applicant proposed ten-foot setbacks, the City of Anna Maria has not had a chance to comment upon the proposal of three- and five-foot setbacks. Land use regulations of the City of Anna Maria require greater setbacks than these. As distinguished from its treatment of the dune profile and vegetation, the Permit supplies ample assurances that the proposed activities would be conducted in such a way as not to disturb nesting sea turtles, which, according to the record, infrequently occupy this specific location. Permit provisions, such as those scheduling construction and governing construction and post-construction lighting, adequately address the relatively simple task of protecting this lightly used nesting habitat.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order denying the application for a coastal construction control line permit to construct a residence at the location indicated at the hearing. DONE AND ENTERED this 13th day of June, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 2000. COPIES FURNISHED: Kathy Carter, Agency Clerk Office of the General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Teri Donaldson, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Adam Mohammadbhoy Harllee Porges Post Office Box 9320 Bradenton, Florida 34205 S.W. Moore Brigham Moore 100 Wallace Avenue, Suite 310 Sarasota, Florida 34237 Francine M. Ffolkes Senior Assistant General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-9314
